In Re Asbestos Products Liability Litigation (No. VI)

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 17-3471
_____________

IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION
(NO. VI)

William D. Schroeder; Creighton E. Miller, Administrator
of The Estate of William D. Schroeder;
Richard G. Williams; Louis Munnier; David C. Peebles,
Administrator of the Estate of Louis Munnier;
Willard E. Bartel, Administrator of the Estate of Louis
Munnier,
Appellants
_____________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court Nos. 2-11-CV-33527, 2-11-CV-32774, 2-11-
CV-33078, 2-02-MD-00875
District Judge: The Honorable Eduardo C. Robreno

Argued December 12, 2018

Before: SMITH, Chief Judge, McKEE, and FISHER,
Circuit Judges
 (Filed: April 9, 2019)

Alan Kellman
Timothy A. Swafford
Jaques Admiralty Law Firm
645 Griswold Street
1370 Penobscot Building
Detroit, MI 48226

Louis M. Bograd[ARGUED]
Motley Rice 401 9th Street, N.W.
Suite 1001
Washington, DC 20004
Counsel for Appellants

Harold W. Henderson[ARGUED]
Thompson Hine
3900 Key Center
127 Public Square
Cleveland, OH 44114
Counsel for Appellees

________________

OPINION
________________

SMITH, Chief Judge.
2
 Decades after the filing of maritime asbestos injury
cases in the Northern District of Ohio, the District Court for the
Eastern District of Pennsylvania—which was by then presiding
over a nationwide asbestos products multidistrict litigation
(MDL)—dismissed claims against numerous defendants for
lack of personal jurisdiction. Unsurprisingly, the MDL Court’s
opinions regarding personal jurisdiction, which were
subsequently applied to thousands of claims, have prompted
multiple appeals, including two prior appeals to this Court.
Now, for the third time, we address on appeal the MDL Court’s
personal jurisdiction rulings. Based on the unique history of
the three consolidated cases now on appeal, we again conclude
that dismissal for lack of personal jurisdiction was
inappropriate. We will dismiss in part and reverse in part.

I.

A.

In the mid-1980s, merchant mariners filed thousands of
lawsuits in the Northern District of Ohio against shipowners, 1
raising claims that the merchant mariners had been injured due
to exposure to asbestos onboard ships. Northern District of

1
Many shipowner defendants and multiple defense
firms have been involved in this litigation. Unless otherwise
indicated, when we describe actions taken by “defendants,”
“shipowners,” and “defense counsel” in this Opinion, we are
referring to appellees and their counsel at Thompson Hine LLP
(previously Thompson, Hine & Flory).
3
Ohio Judge Thomas Lambros 2 initially presided over the
massive Ohio maritime asbestos docket (MARDOC) prior to
the 1991 consolidation of the cases in an MDL in the Eastern
District of Pennsylvania.

When they filed in the Northern District of Ohio, the
merchant mariners relied on a theory of nationwide personal
jurisdiction for maritime cases. In 1989, shipowners filed
motions to dismiss for lack of personal jurisdiction, arguing
that the nationwide theory of jurisdiction was improper and
that they did not have sufficient ties to Ohio to justify the
exercise of personal jurisdiction over them. In an oral ruling
in October of 1989, Judge Lambros rejected the merchant
mariners’ theory of jurisdiction and ruled that the Northern
District of Ohio lacked personal jurisdiction over a number of
the shipowners. 3 Judge Lambros indicated, however, that he
would be denying the motion to dismiss and issuing an order
transferring the cases instead. Following Judge Lambros’s
ruling, defense counsel requested additional time to consult
with his clients and determine whether the shipowners wanted
to accept transfer or waive their personal jurisdiction defenses
so that they could remain in the Northern District of Ohio.
Counsel suggested that his clients may very well want to waive
the defense: “It is conceivable, your Honor, in view of the fact
that such motions to dismiss have been denied that some of

2
After over 27 years of distinguished service, Judge
Lambros left the federal bench in 1995.
3
The merchant mariners have since abandoned the
nationwide contacts theory and do not appeal the MDL Court’s
ruling that there was not personal jurisdiction over defendants.
4
those defendants who filed motions will not care to be
transferred and they wish to stay here, I don’t know. I have to
consult with them.” App. 291.

The Northern District of Ohio followed up the next
month with a hearing to address the shipowners’ decisions as
to whether they would waive the personal jurisdiction defense.
Defense counsel advised Judge Lambros that he did not yet
have an answer because his clients wanted to know how Judge
Lambros would rule on various issues prior to deciding
whether they would consent to jurisdiction. See, e.g., App.
362–63. Defense counsel explained that in his view “a lot of
these people will stay once they know that information.” App.
364. Counsel for the merchant mariners objected to the
shipowners’ equivocation:

And so [defense counsel] Mr. Murphy is saying
well, he can’t make a decision. And just like the
old expression be careful what you ask for; you
might get it. That’s really what he has here. He
says, ‘Oh, Judge, we wanted to get out of here.’
Then he says, ‘Well, we want you to make a few
more preliminary rulings before we decide
whether we want to go or not.’ I say get them
out of here.

App. 373; see also App. 378. At the conclusion of the
November hearing, the Northern District of Ohio directed the
shipowners to simply file answers by the answer deadline if
they intended to waive the personal jurisdiction objection, and,
at the time, defense counsel accepted that procedure:

5
 Judge Lambros: “What happens if in the
management of these cases if we make the
disclosure date the same date as the answer date,
but if the position is that they are not leaving,
they have to have their answers in on those
dates?”

***

Defense Counsel: “I see no problem with that,
your Honor. Now that we have the information,
we know what we have to do, that’s no problem.”

App. 401–02. 4

Judge Lambros issued MARDOC Orders No. 40 and
41, on November 22, 1989, and December 29, 1989,

4
See also App. 404 (Judge Lambros: “And unless of
course the parties otherwise announce by January 5th, that then
on January 6th or 7th these cases will be transferred. . . . But
January 5th the answers have to be filed, and then we transfer
then if those specific defendants don’t answer and thus waive
by the answer date, then the cases get transferred out.”); App.
404–05 (Judge Lambros: “In other words a transfer order goes
on and we designate the particular jurisdictions to which it will
be transferred, and that order will go into effect January 7th
unless by January 5th those particular defendants choose to
waive the in personam jurisdiction problem . . . Mr. Murphy: I
don’t perceive any difficulty. Special Master Martyn: Just for
my understanding, so they will answer if they want to stay.
[Judge Lambros]: That’s right.”).
6
respectively, reiterating the procedure announced at the
November hearing and directing shipowners who wished to
waive their personal jurisdiction defenses to file answers by
January 5, 1990, in order to demonstrate waiver. See App. 416
(MARDOC 40: “Parties who, upon reconsideration of their
motions to dismiss or transfer, wish to remain in this
jurisdiction need only file answers to the complaints in
accordance with the deadlines established below.”); App. 419
(MARDOC 41: “Shipowner defendants, not subject to this
transfer order, shall file answers by January 5, 1990.”).
MARDOC Order 41 expressly ordered transfer of the cases
where there was no personal jurisdiction and identified the
jurisdiction to which each case would be transferred. On
December 29, 1989, shipowners filed a motion for
interlocutory appeal and stay to challenge the Northern District
of Ohio’s authority to transfer the cases rather than dismissing
them.

Before the Northern District of Ohio had ruled on the
motion for interlocutory appeal and stay, all shipowners
relevant to this consolidated appeal filed answers on January 5,
1990, in compliance with Judge Lambros’s deadline. Yet
shipowners asserted in those answers that they were filing
under protest and continued to assert personal jurisdiction
defenses. App. 1131; App. 1133–34; App. 1136. Other
defendants did not file answers and were transferred out of the
Northern District of Ohio.

After the shipowners filed their answers, the Northern
District of Ohio proceeded as if they had waived their personal
jurisdiction defenses. MARDOC Order 41, directing transfer
of those cases where personal jurisdiction was lacking, was
7
never effectuated as to these shipowners. 5 Nor did the
Northern District of Ohio rule on the motion for interlocutory
appeal. Indeed, the cases progressed before Judge Lambros for
over a year, with no additional motion practice challenging the
Northern District of Ohio’s jurisdiction or seeking transfer. 6

B.

In 1991, authority over the maritime asbestos cases was
transferred to the asbestos MDL in the Eastern District of
Pennsylvania. Defendants opposed transfer to the MDL Court

5
There are indications in the record that other cases, in
which an answer was not filed, were actually transferred. See,
e.g., App. 465–66 (“As a consequence of this Honorable
Court’s Order of December 10, 1989, forum non conveniens
plagues plaintiffs, for each of the causes of action has been
splintered, leaving part of the case here and part elsewhere.”);
App. 482.
6
In February 1990, merchant mariners moved for
transfer in toto of the cases such that they could all be tried in
one jurisdiction. Defense counsel for the shipowners relevant
to this appeal filed a brief opposing transfer and noting that
some shipowners had waived their personal jurisdiction
defenses in order to proceed in the Northern District of Ohio.
Those waiver statements were not directly tied to any specific
shipowner. Similarly, a group of cases was temporarily
transferred to Michigan and defense counsel argued for
retransfer back to the Northern District of Ohio, arguing in part
that those shipowners had waived their personal jurisdiction
defenses in Ohio. The cases now on appeal were not part of
the Michigan group, as explained infra.
8
but did not raise a personal jurisdiction defense in their
opposition papers. After the creation of the MDL, the
MARDOC cases were stayed. There is no dispute, however,
that the shipowners consistently attempted to raise personal
jurisdiction defenses in compliance with the MDL timelines.

In 2011, the cases at issue here were reactivated by
Judge Robreno, who by then was presiding over the MDL in
the Eastern District of Pennsylvania. In 2013 and 2014, the
MDL Court issued two memorandum opinions concluding that
a number of shipowners were not subject to personal
jurisdiction in Ohio and that the shipowners had not waived the
defense. The MDL Court explained that the shipowners had
preserved the defense by raising lack of personal jurisdiction
before the Northern District of Ohio and again before the MDL
Court on multiple occasions. Although shipowners filed
answers in the Northern District of Ohio—a procedure Judge
Lambros had ordered would indicate waiver—the MDL Court
concluded that this did not result in waiver because
“defendants did not intend to waive the defense.” App. 53. The
MDL Court noted that “defendants faced a Hobson’s choice:
they could either have agreed to a transfer of the cases to
another jurisdiction (and thus lost the ability to assert cross-
claims against manufacturer defendants), or they could have
chosen to remain in the Northern District of Ohio and lost the
defense of lack of personal jurisdiction.” App. 54.
Accordingly, the MDL Court held that “[b]y filing answers
which clearly identified the defense, while at the same time
seeking interlocutory review of Judge Lambros’[s] order,
defendants preserved and did not waive the defense.” App. 54
(internal citation omitted). The MDL Court subsequently

9
applied its prior memorandum opinions to the three merchant
mariners relevant to this appeal and dismissed their claims
against the shipowners for lack of personal jurisdiction.
Merchant mariners Munnier, Schroeder, and Williams filed a
timely notice of appeal.

II.

The District Court had jurisdiction under 28 U.S.C.
§§ 1331 and 1333. We have appellate jurisdiction under 28
U.S.C. § 1291. 7 See Brown Shoe Co. v. United States, 370 U.S.
294, 308–09 (1962).

7
The clerk’s office sua sponte ordered the parties to
brief whether the MDL Court’s order was a final order such
that this Court has jurisdiction to consider the appeal under 28
U.S.C. § 1291. Following a review of the parties’ briefs, we
have no doubt that the MDL Court’s order was an appealable
final order. See Allegheny Int’l, Inc. v. Allegheny Ludlum Steel
Corp., 920 F.2d 1127, 1131 (3d Cir. 1990) (“A district court’s
decision is final and appealable for purposes of § 1291 only
when the decision ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.” (internal
quotation marks omitted)). While the MDL Court indicated in
its judgment that it was transferring the cases to the
bankruptcy-only docket for plaintiffs to pursue claims against
bankrupt defendants, there was clear “indicia of finality.” In
addition, the MDL Court elsewhere described the “transfer” to
the bankruptcy docket as a “dismissal.” See, e.g., In re
Asbestos Prods. Liability Litig., No. 2:02-md-875, Dkt. 4961
at 2 (directing plaintiffs to identify whether cases “can be
10
 We must, nonetheless, dismiss Mr. Schroeder’s appeal
against Marine Transport Lines, Inc., because it is barred by
res judicata. After the MDL Court dismissed Mr. Schroeder’s
claims, but before a final judgment had issued, Mr. Schroeder
filed suit in South Carolina state court raising the same claims
against Marine Transport Lines. After the state court
dismissed similar cases brought by other plaintiffs because
they were filed outside of the statute of limitations, Mr.
Schroeder, apparently anticipating the state court’s ruling, filed
a motion to voluntarily dismiss his claims. The state court
entered an order dismissing Mr. Schroeder’s claims with
prejudice.

This Court gives a judgment of a state court the same
preclusive effect as would another court of that state.
Paramount Aviation Corp. v. Agusta, 178 F.3d 132, 141 (3d
Cir. 1999). In South Carolina, “[a] dismissal with prejudice
acts as an adjudication on the merits and therefore precludes
subsequent litigation just as if the action had been tried to a
final adjudication.” Laughon v. O’Braitis, 602 S.E.2d 108, 111
(S.C. Ct. App. 2004). Accordingly, the South Carolina
dismissal with prejudice precludes Mr. Schroeder and his
estate from pursuing claims against Marine Transport Lines.

marked closed or dismissed to the ‘bankruptcy only’ docket”
(emphasis added)); see also Johnston v. Citizens Bank & Trust
Co. of Flippin, Ark., 659 F.2d 865, 868 (8th Cir. 1981) (holding
that a District Court judgment was a final judgment despite the
fact that portions of the case were “transferred” to the
Bankruptcy Court because it was clear that those portions of
the case had actually been dismissed).
11
We will therefore grant the motion to dismiss Mr. Schroeder’s
appeal as to Marine Transport Lines.

III.

We review a District Court’s decision as to the waiver
of an affirmative defense for abuse of discretion. Sharp v.
Johnson, 669 F.3d 144, 158 (3d Cir. 2012). “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. at 158 n.19 (internal quotation
marks omitted). Here, the fundamental facts are not in dispute.
Instead, the primary question at issue is whether the
defendants’ conduct amounted to waiver of the personal
jurisdiction defense as a matter of law. We hold that the
District Court’s conclusion that there was no waiver was an
improper application of law to fact that constitutes an abuse of
discretion under this Court’s precedent.

A.

Under Federal Rule of Civil Procedure 12(b)(2),
defendants have the right to move for dismissal for lack of
personal jurisdiction, but that right is not unlimited. Rule 12(h)
clarifies that the defense of lack of personal jurisdiction can be
waived if a defendant fails to raise it in a timely fashion. Fed.
R. Civ. P. 12(h). Precedent of the Supreme Court and this
Court further holds that the right to assert a personal
jurisdiction defense can be affirmatively and implicitly waived
through conduct. See, e.g., Ins. Corp. of Ireland, Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 703 (1982)
(“Because the requirement of personal jurisdiction represents
12
first of all an individual right, it can, like other such rights, be
waived.”); Zelson v. Thomforde, 412 F.2d 56, 59 (3d Cir. 1969)
(“[P]ersonal jurisdiction may be conferred by consent of the
parties, expressly or by failure to object.” (citing Petrowski v.
Hawkeye Security Ins. Co., 350 U.S. 495, 496 (1956))).

Simply put, “[t]he actions of the defendant may amount
to a legal submission to the jurisdiction of the court” even
where a defendant has raised the defense. Ins. Corp. of Ireland,
Ltd., 456 U.S. at 704–05; see also Yeldell v. Tutt, 913 F.2d 533,
539 (8th Cir. 1990) (“Asserting a jurisdictional defect in the
answer did not preserve the defense in perpetuity.” (internal
quotation marks omitted)). This aligns with the original
purpose of Rule 12, which is to prevent “dilatory tactics” and
“to expedite and simplify the pretrial phase of federal
litigation” to facilitate adjudication on the merits. 5B C.
Wright & A. Miller, Fed. Prac. and Proc. § 1342 (3d ed.
2004).

Thus, even where a party has met the technical
requirements of Rule 12(h), that is not always sufficient to
avoid waiver. See Peterson v. Highland Music, Inc., 140 F.3d
1313, 1318 (9th Cir. 1998) (“Rule 12(h)(1) specifies the
minimum steps that a party must take in order to preserve a
defense.”). A party’s actions must also be consistent with the
spirit of Rule 12 by diligently advancing its procedural
objections. See Yeldell, 913 F.2d at 539 (“While the Tutts
literally complied with Rule 12(h) by including the
jurisdictional issue in their answer, they did not comply with
the spirit of the rule, which is to expedite and simplify
proceedings in the Federal Courts.” (internal quotation marks
omitted)). As this Court has explained, “a party is deemed to
13
have consented to personal jurisdiction if the party actually
litigates the underlying merits or demonstrates a willingness to
engage in extensive litigation in the forum.” In re Tex. E.
Transmission Corp. PCB Contamination Ins. Coverage Litig.,
15 F.3d 1230, 1236 (3d Cir. 1994). “In particular, where a
party seeks affirmative relief from a court, it normally submits
itself to the jurisdiction of the court with respect to the
adjudication of claims arising from the same subject matter.”
Bel-Ray Co. v. Chemrite (Pty) Ltd., 181 F.3d 435, 443 (3d Cir.
1999) (citing Adam v. Saenger, 303 U.S. 59, 67 (1938)).

B.

Here, there is no dispute that the shipowners timely filed
a motion to dismiss for lack of personal jurisdiction in the
Northern District of Ohio, in compliance with Rule 12. The
question is therefore whether the MDL Court abused its
discretion when it concluded that the shipowners had not
waived their personal jurisdiction defenses by subsequently
consenting to, or acquiescing in, the jurisdiction of the
Northern District of Ohio.

This Court has issued two non-precedential opinions in
related cases where other merchant mariners appealed the
MDL Court’s orders dismissing maritime asbestos cases for
lack of personal jurisdiction. See In re: Asbestos Prod. Liab.
Litig. (No. VI) (Braun), 661 F. App’x 173 (3d Cir. 2016); In re
Asbestos Prod. Liab. Litig. (No. VI) (Blue), 721 F. App’x 111
(3d Cir. 2017). 8 In both cases, this Court reversed, concluding

8
These dispositions were not opinions of the full Court
and pursuant to I.O.P. 5.7 do not constitute binding precedent.
14
that the shipowners had waived their personal jurisdiction
defenses. Those appeals, however, involved cases that had
been transferred from the Northern District of Ohio to
Michigan, whereas the cases here had not been transferred.
The panels relied on express statements by shipowners in the
Michigan proceedings that they had waived their personal
jurisdiction defenses in Ohio. We decline the merchant
mariners’ invitation to impute the shipowners’ statements in
Braun and Blue to defendants here. 9 There was no express
waiver in the three cases before us.

The question, then, becomes whether the MDL Court
abused its discretion when it concluded that the shipowners had
not implicitly waived their personal jurisdiction defenses
through their conduct in the Northern District of Ohio. We
conclude that the facts and our precedent support a
determination that there was implicit waiver. We hold,
therefore, that the MDL Court’s contrary ruling was an abuse
of discretion.

First, the shipowners themselves introduced the
possibility of waiver at the October 1989 hearing by asking for
additional time so they could choose whether to assent to
transfer or waive their personal jurisdiction objections. Then,
at the hearing the following month, the shipowners
equivocated as to whether or not they intended to waive the

9
We do note, however, that at the time defense counsel
stated in the Michigan cases that the personal jurisdiction
defense had previously been waived, nothing had transpired in
those cases to indicate waiver apart from the conduct that had
also taken place in the cases here.
15
defense, and their counsel requested that Judge Lambros make
additional rulings before his clients decided whether to waive
jurisdiction. Generally, a party who requests affirmative relief
and rulings from a court is considered to have waived the
personal jurisdiction defense. Bel-Ray Co., 181 F.3d at 443.

Second, the record is clear that the shipowners objected
to transfer, and they stand by that objection on appeal. See,
e.g., Appellees’ Br. at 39 (“Appellees declined either to waive
their defenses or to assent to transfer.”). Because Judge
Lambros had already denied defendants’ motions to dismiss
and concluded that personal jurisdiction was absent, the
shipowners were left with two options. They could waive their
personal jurisdiction defenses and remain in the Northern
District of Ohio, or they could submit to transfer to a court
where personal jurisdiction existed. By objecting to transfer,
the shipowners constructively opted to waive their personal
jurisdiction defenses.

Third, we conclude that the shipowners unequivocally
waived their personal jurisdiction defenses when they filed
answers in the Northern District of Ohio. Generally, filing an
answer in which lack of personal jurisdiction is identified as an
affirmative defense would not constitute waiver. The
circumstances of this case, however, require a different result.
Judge Lambros and the parties expressly agreed that the
shipowners could demonstrate waiver of the defense by filing
an answer no later than January 5, 1990, and that shipowners
not subject to personal jurisdiction who did not file an answer
would be transferred to a court with personal jurisdiction over
them. App. 401–05. Defense counsel indicated an
understanding of, and agreement to, this procedure. App. 402,
16
405. Accordingly, when the shipowners then filed answers in
compliance with the agreed-upon procedure, their actions were
consistent with waiver, despite the fact that they purported to
preserve the personal jurisdiction defense. Behavior that is
consistent with waiver, and which indicates an intent to litigate
the case on the merits, is sufficient to constitute waiver,
regardless of whether the parties also express an intent to
preserve the defense. See Ins. Corp. of Ireland, Ltd., 456 U.S.
at 704–05; In re Tex. E. Transmission Corp. PCB
Contamination Ins. Coverage Litig., 15 F.3d at 1236.

Further, to the extent the shipowners believed they had
a basis for pursuing an interlocutory appeal regarding the
validity of Judge Lambros’s order denying dismissal and
instead ordering transfer, they had already filed a motion to
stay pending resolution of that appeal and could have relied on
that motion or, if necessary, filed a petition for writ of
mandamus. They were under no obligation to file answers in
order to avoid immediate transfer or otherwise, as they were
not bound by the scheduling orders of a court that did not have
jurisdiction over them. Cf. Ins. Corp. of Ireland, 456 U.S. at
706 (“A defendant is always free to ignore the judicial
proceedings, risk a default judgment, and then challenge that
judgment on jurisdictional grounds in a collateral
proceeding.”). By filing pleadings responding to substantive
allegations in the merchant mariners’ complaints—after Judge
Lambros had unequivocally ruled that he did not have
jurisdiction—the shipowners chose to actively litigate their
cases. The shipowners were fully aware that their conduct
constituted waiver in the eyes of plaintiffs and Judge Lambros,
and created an expectation of continued litigation on the

17
merits. See In re Tex. E. Transmission Corp. PCB
Contamination Ins. Coverage Litig., 15 F.3d at 1236; see also
Mobile Anesthesiologists Chicago, LLC v. Anesthesia Assocs.
Houston Metroplex, P.A., 623 F.3d 440, 443 (7th Cir. 2010).
We conclude the conduct here constitutes waiver.

Fourth, even if the shipowners had not waived their
personal jurisdiction defenses by filing answers or through
other conduct consistent with waiver, they subsequently
forfeited the defense by failing to diligently pursue it in the
Northern District of Ohio. See United States v. Olano, 507
U.S. 725, 733 (1993) (“Whereas forfeiture is the failure to
make the timely assertion of a right, waiver is the intentional
relinquishment or abandonment of a known right.” (internal
quotation marks omitted)). As indicated by the ongoing
proceedings, Judge Lambros must have believed that the
shipowners had waived the defense because he continued to
preside over the cases, despite his prior ruling that the Northern
District of Ohio did not have personal jurisdiction, and he did
not transfer the cases despite the fact that the defendants were
clearly subject to MARDOC Order 41. If the shipowners had
not intended to waive their defenses by filing answers and
believed that the Northern District of Ohio continued to lack
personal jurisdiction over them, they had an obligation to
diligently pursue that defense rather than acquiesce in the
ongoing Northern District of Ohio proceedings. See In re Tex.
E. Transmission Corp. PCB Contamination Ins. Coverage
Litig., 15 F.3d at 1236. The shipowners’ failure to do so
constituted forfeiture. See Hamilton v. Atlas Turner, Inc., 197
F.3d 58, 59 (2d Cir. 1999) (“We conclude that Atlas forfeited
its defense of lack of personal jurisdiction by participating in

18
extensive pretrial proceedings and forgoing numerous
opportunities to move to dismiss during the four-year interval
that followed its inclusion of the defense in its answer.”).

Based on these grounds, it is clear that defendants both
waived their personal jurisdiction defenses through their own
affirmative conduct in the Northern District of Ohio and
forfeited their personal jurisdiction defenses by subsequently
failing to pursue them in that Court. It was an abuse of
discretion for the MDL Court to conclude otherwise given the
proceedings before Judge Lambros and the shipowners’
undisputed conduct in the Northern District of Ohio.

Further, the MDL Court abused its discretion by
applying incorrect legal standards. First, the MDL Court
improperly concluded that the shipowners had preserved the
personal jurisdiction defense simply by stating in their answers
that they did not intend to waive it. The law is clear that words
alone are insufficient to preserve a personal jurisdiction
defense where conduct indicates waiver. And defendants can
forfeit the defense even through conduct that is involuntary.
See Ins. Corp. of Ireland, Ltd., 456 U.S. at 704–05. Although
the District Court accurately cited this law, it did not apply it
correctly to the facts of this case.

Second, the MDL Court explained that the shipowners
faced a “Hobson’s choice” in deciding whether to answer and
waive personal jurisdiction or agree to transfer, App. 54, and
the MDL Court suggested that being forced to make a choice
was somehow inappropriate. But defendants always face such
a choice when a court lacks personal jurisdiction and rules in
favor of transfer rather than dismissal. The shipowners did not
19
have the right to simultaneously maintain their personal
jurisdiction defenses in the Northern District of Ohio and avoid
transfer to a court with personal jurisdiction over them. To the
extent the MDL Court concluded that a defendant should not
be required to choose between waiver of the personal
jurisdiction defense and transfer, that was legal error.

Based on the MDL Court’s application of incorrect
legal standards and its improper application of the waiver
standard to the factual history of these cases, we will reverse.

C.

Notably, the Sixth Circuit has affirmed the MDL
Court’s order dismissing for lack of personal jurisdiction in an
appeal by plaintiffs who share the same procedural history as
the parties here. See Kalama v. Matson Navigation Co., 875
F.3d 297 (6th Cir. 2017). Like the MDL Court, the Sixth
Circuit concluded that Judge Lambros did not have the
authority to institute a procedure whereby filing an answer
would constitute waiver of the personal jurisdiction defense.
We conclude that the Sixth Circuit’s reasoning is not
persuasive given both our precedent and what we understand
to have transpired in Judge Lambros’s courtroom. For that
reason, we are constrained not to follow the Sixth Circuit’s
holdings.

The Sixth Circuit explained that the Kalama defendants
did not waive their personal jurisdiction defenses by filing
answers because Judge Lambros exceeded his authority by
declaring that filing an answer would result in waiver:

20
 Because the Federal Rules of Civil Procedure do
not authorize a district court to strip a defendant
of its right to assert an affirmative defense in an
answer, it was not an abuse of discretion to
determine that the ship-owner defendants could
seek to preserve their personal-jurisdiction
defense at that time.

Id. at 305. We disagree. While it would ordinarily be
appropriate for a defendant to raise a personal jurisdiction
defense in an answer and thereby preserve the defense, the
procedural history of this case was anything but typical. Prior
to the filing of answers, Judge Lambros had already ruled that
he did not have personal jurisdiction over the shipowners.
They could not continue to participate in the lawsuit and,
simply by stating they were not waiving, preserve a defense
that had already been ruled upon.

Thus, Judge Lambros did not “strip a defendant of its
right to assert an affirmative defense in an answer.” Instead,
having already ruled that he did not have personal jurisdiction
over the shipowners, he ruled that continuing to actively
litigate the case by submitting an answer would indicate waiver
and an intent to proceed in the Northern District of Ohio. That
procedure was an exercise in case management that was
entirely within Judge Lambros’s discretion. See United States
v. Wecht, 484 F.3d 194, 217 (3d Cir. 2007); In re Fine Paper
Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982) (“We will not
interfere with a trial court’s control of its docket except upon
the clearest showing that the procedures have resulted in actual
and substantial prejudice to the complaining litigant.” (internal
quotation marks omitted)).
21
 The Sixth Circuit further explained that the MDL Court
did not abuse its discretion by concluding that there was no
forfeiture because there was no concrete evidence of forfeiture:
“On this record and absent concrete evidence that any specific
ship-owner defendant had abandoned its personal-jurisdiction
defense, it was not a clear error of judgment for the MDL court
to reject the MARDOC plaintiffs’ forfeiture argument.”
Kalama, 875 F.3d at 307. As discussed above, we agree that
there was no express waiver by the defendants here, but our
precedent does not require concrete evidence or even an intent
to waive or forfeit. Conduct consistent with waiver or
forfeiture is enough. See, e.g., In re Tex. E. Transmission
Corp. PCB Contamination Ins. Coverage Litig., 15 F.3d at
1236; Ins. Corp. of Ireland, Ltd., 456 U.S. at 704–05. Here,
the shipowners objected to transfer, requested additional
rulings from the Northern District of Ohio, complied with
Judge Lambros’s procedure for waiving their personal
jurisdiction defenses, and continued to participate in the
litigation for over a year after Judge Lambros unequivocally
ruled that he did not have personal jurisdiction. That conduct
establishes both waiver and forfeiture under this Circuit’s
jurisprudence. Accordingly, we must chart a different course
than the Sixth Circuit followed in Kalama.

“While we are generally reluctant to create circuit splits,
we do so where a compelling basis exists.” Parker v.
Montgomery Cty. Corr. Facility/Bus. Office Manager, 870
F.3d 144, 152 (3d Cir. 2017) (internal quotation marks
omitted) (quoting Karlo v. Pittsburgh Glass Works, LLC, 849
F.3d 61, 75 n.7 (3d Cir. 2017)). To the extent our holding today
creates a circuit split with the Sixth Circuit, it is compelled by

22
our own precedent. Yet even if we had discretion to depart
from this Court’s case law and reconcile our ruling with that of
the Sixth Circuit, we would still conclude that the compelling
interests of promoting adjudication on the merits and
permitting the merchant mariners to have their day in court are
sufficient to justify a circuit split in this instance. See, e.g.,
Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466–67 (1962);
Schwilm v. Holbrook, 661 F.2d 12, 16 (3d Cir. 1981); Myers v.
Am. Dental Ass’n, 695 F.2d 716, 721 (3d Cir. 1982) (“[The
Rule 12(h) waiver rule] reflects a strong policy against tardily
raising defenses that go not to the merits of the case but to the
legal adequacy of the initial steps taken by the plaintiff in his
litigation, namely his service of process on the defendant and
his choice of forum for the action.”).

IV.

For the reasons outlined above, we will grant
shipowners’ motion to dismiss Mr. Schroeder and his estate’s
appeal as to Marine Transports Lines, Inc. We will otherwise
reverse the MDL Court’s judgment and the orders granting the
shipowners’ motions to dismiss for lack of personal
jurisdiction as they pertain to these merchant mariners. While
the shipowner defendants did not expressly waive their
personal jurisdiction defenses, their conduct in the Northern
District of Ohio resulted in both waiver and forfeiture of those
defenses. It was, therefore, an abuse of discretion for the MDL
Court to dismiss for lack of personal jurisdiction. Barring any
additional preliminary matters, these 30-year-old cases should
at last proceed to adjudication on the merit.

23
IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION
(NO. VI)
No. 17-3471

FISHER, Circuit Judge, dissenting.

Like buried treasure, the Appellant merchant mariners
ask us to dig up court transcripts and interpret the meaning of
off-the-cuff dialogue between counsel and the court that
occurred more than three decades ago. However, the MDL
Court already accomplished this task, and it did so according
to the appropriate legal standards and within the bounds of
reasonable factual interpretation. Because the record
demonstrates that the MDL Court did not abuse its discretion
in concluding that the shipowners preserved their personal
jurisdiction defense, I would affirm.
I
After determining that the Northern District of Ohio did
not have personal jurisdiction over certain defendants, Judge
Lambros allowed defense counsel thirty days to consult with
their clients regarding whether they would prefer to consent to
jurisdiction in Ohio, or have their matter transferred to a court
with jurisdiction.
At the hearing that followed, Special Master Martyn,
who managed MARDOC, stated that the court would “assume
transfer” if defendants’ responses were not received by
December 1, 1989. App. at 331. Special Master Martyn
ordered that, if a party wished to waive jurisdiction, it must so
“apprise the Court no later than Friday, December 1st, in
writing.” App. at 332. Later in the hearing, he reiterated that
any defendant wishing to waive jurisdiction must affirmatively
do so in writing.

1
 When Judge Lambros arrived at the hearing, defense
counsel raised concerns about deciding whether to waive
jurisdiction without additional information, such as the specific
transferee courts and whether the cases would be consolidated.
The court acknowledged defendants’ interest in answers to
these questions, but noted that it could not yet make a ruling.
The judge then proposed that “the disclosure date [be] the same
date as the answer date, but if the position is that they are not
leaving, they have to have their answers in on [January 5,
1990].” App. at 401-02. In response, a representative of
defense counsel stated that he “saw no problem with that.”
App. at 402. To clarify Judge Lambros’ position, Special
Master Martyn asked, “[S]o they will answer if they want to
stay[?] . . . And we will pull their name off the [transfer] list.”
App. at 405. Judge Lambros confirmed.
The next day, the court issued MARDOC Order No. 40,
which required the merchant mariners to list the forum to
which each case should be transferred and noted that “[p]arties
who, upon reconsideration of their motions to dismiss or
transfer, wish to remain in this jurisdiction need only file
answers to the complaints.” App. at 416. One week before the
deadline to file answers, Judge Lambros issued MARDOC
Order No. 41, which identified the defendants and cases not in
the court’s jurisdiction and identified the jurisdictions to which
the cases would be transferred.
The shipowners, who were named in MARDOC Order
No. 41 and all represented by the same firm, filed answers on
January 5. In Master Answer No. 1, they stated as an
affirmative defense that “[t]he Court lacks personal jurisdiction
due to insufficient contacts . . . .” App. at 1131. Master
Answer No. 2 began with a preliminary statement specifically
asserting that, by filing the answer, defendants were not
waiving their personal jurisdiction defense:

2
 In response to defendants’ motion to dismiss for
lack of personal jurisdiction, the Court has issued
MARDOC Order Nos. 40 and 41 which transfer
the numerous cases against defendant to multiple
jurisdictions, up to and including thirteen
separate districts around the nation. Each
defendant maintains that the transfers are
contrary to law. A motion to certify the order of
transfer for interlocutory appeal has been filed on
behalf of defendant, and in order to preserve the
status quo pending appellate review of such
order, defendant files its answer to the
complaints as directed by MARDOC Order Nos.
40 and 41 under protest, so that said cases will
not be transferred automatically pursuant to
MARDOC Order No. 40 prior to completion of
appellate review. By filing its answer, defendant
specifically does not waive its defense of lack of
personal jurisdiction or waive its objections to
the propriety of the transfers.
App. at 1133-34.
Over the next year, the court’s only actions pertained to
transferring cases. For instance, because MARDOC Order No.
41 would transfer the cases all over the United States and
splinter cases across jurisdictions due to the numerous
defendants in each action, the merchant mariners filed a motion
to transfer in toto. Defendants, including the shipowners,
objected, however, stating in part that:
Several nonresident defendants, although not
subject to the personal jurisdiction of this Court,
nevertheless agreed to waive their personal
jurisdiction defense as the quid pro quo to avoid

3
 the expense of litigating these cases in as many
as 13 different jurisdictions simultaneously, and
to take advantage of the consolidated handling
available in [the Northern District of Ohio].
App. at 474-75.
Though defendants’ opposition noted that “several
nonresident defendants” purposefully waived their personal
jurisdiction defense, it did not identify who those defendants
were. On appeal, the shipowners maintain that these statements
“refer[] solely to nonresident defendants who were not clients
of Thompson Hine and Flory, and are not Appellees here.”
Appellees’ Br. at 17 (emphasis in original). Instead, they
explain that these statements refer to defendants represented by
other firms who informed the court that they would “just as
soon be [in Ohio] as anywhere,” filed motions consenting to
the court’s jurisdiction, and withdrew their motions to dismiss
or transfer. Id. at 17-18.
The court ultimately denied the merchant mariners’
Motion to Transfer in Toto. However, Judge Lambros never
ruled on defendants’ motion to certify interlocutory appeal of
Order No. 41, nor did he transfer any cases pursuant to that
Order, including those in which the defendants did not file
answers. Instead, in January of 1991, the court transferred
forty-four cases, not including the shipowners’ cases at issue
here, to the Eastern District of Michigan, while the shipowners’
cases (among others) remained on the Northern District of
Ohio’s docket. The Michigan cases were ultimately returned
to Ohio, but it was not long before the Judicial Panel for
Multidistrict Litigation transferred all asbestos cases, from
jurisdictions across the United States, to the Eastern District of
Pennsylvania for consolidated pre-trial proceedings.
There, the cases remained static for the next two

4
decades until Judge Robreno began presiding over MARDOC.
At this time, the shipowners re-raised their motions to dismiss
for lack of personal jurisdiction, which the MDL Court
granted; the merchant mariners now appeal.
II
To reverse the lower court’s ruling, we must conclude
that the MDL Court abused its discretion in determining that
the shipowners preserved their personal jurisdiction defense.
See Sharp v. Johnson, 669 F.3d 144, 158 (3d Cir. 2012). Such
an abuse occurs where the court’s “decision rests upon a clearly
erroneous finding of fact, an errant conclusion of law or an
improper application of law to fact.” Id. at 158 n.19 (internal
quotations omitted).
The majority concludes “that the District Court’s
conclusion that there was no waiver was an improper
application of law to fact that constitutes an abuse of
discretion.” Maj. Op. at § III. In reaching this holding, the
majority also made a factual conclusion that “the shipowners
were fully aware that [filing answers] constituted waiver in the
eyes of the plaintiffs and Judge Lambros[] and created an
expectation of continued litigation on the merits.” Maj. Op. at
§ III(B). However, these conclusions overlook the significant
deference afforded to the MDL Court’s findings and
incorporate arguments that were not raised by the merchant
mariners on appeal. 1

1
Only where the lower court’s “error is so ‘plain’ that manifest
injustice would otherwise result” should an appellate court
exercise its discretion to consider arguments that were not
properly raised in the appellant’s opening brief. Gambino v
Morris, 134 F.3d 156, 169 (3d Cir. 1998). There is no evidence
to suggest that the lower court committed an error so egregious

5
 A. The MDL Court Did Not Make Clearly Erroneous
Finding of Fact.
Though the majority does not expressly state that the
MDL Court made clearly erroneous findings of fact, it reaches
different factual conclusions than the MDL Court to find that
the shipowners waived their jurisdictional defense. In so
doing, the majority applies a less deferential standard than that
required. The “clearly erroneous” standard “does not envision
an appellate court substituting its findings for that of the district
court; rather it allows only an assessment of whether there is
enough evidence on record to support such findings, regardless
[of] whether different inferences could be drawn.” Leeper v.
United States, 756 F.2d 300, 308 (3d Cir. 1985); see also
Agathos v. Starlite Motel, 977 F.2d 1500, 1504 (3d Cir. 1992)
(highlighting that a finding of fact is only “clearly erroneous”
if the record lacks sufficient evidence to support the court’s
factual conclusions).
First, the majority holds that the shipowners waived
their jurisdiction defense by filing answers; however, those
answers included clear and unequivocal statements preserving
their jurisdictional defenses in accordance with the Federal
Rules of Civil Procedure and our law.
This Court has held that the Federal Rules of Civil
Procedure permit “a defendant to answer to the merits in the
same pleading in which he raises a jurisdictional defense
without waiving the jurisdictional defense.” Neifeld v.
Steinberg, 438 F.2d 423, 427 (3d Cir. 1971). In Neifeld,
defendant filed an answer to plaintiff’s claims asserting a lack
of personal jurisdiction and—in the same pleading—raising a

that a “manifest injustice” would occur if we did not consider
these un-argued issues.

6
counterclaim against plaintiff. Id. Plaintiff argued that, by
filing a counterclaim, defendant submitted to the jurisdiction
of the court. Id. at 425. On appeal, this Court noted that,
though the Federal Rules do not explicitly authorize a party to
couple a counterclaim and jurisdictional defense without
waiving the jurisdictional defense, the language of Rule 12(b)
does so implicitly. Id. at 427-28. This Court reasoned that,
because Rule 12(b) permits a defendant to raise jurisdictional
defenses by motion or answer, prohibiting the defendant from
coupling his answer and counterclaim would invalidate the
options expressly permitted by the Federal Rules, which the
court cannot do. Id. at 428.
Relying on similar reasoning, the Sixth Circuit,
reviewing cases from the same MDL Court as here, held that
defendants did not waive personal jurisdiction by filing an
answer, even in light of MARDOC Order No. 41. Kalama v.
Matson Navigation Co., 875 F.3d 297, 305 (6th Cir. 2017).
The Kalama Court reasoned that because the Rules “do not
authorize a district court to strip a defendant of its right to assert
an affirmative defense in an answer, it was not an abuse of
discretion to determine that the ship-owner defendants could
seek to preserve their jurisdictional defense at any time.” Id.
It further concluded that the defendants’ preservation of their
jurisdictional defense in Master Answer No. 2, the same
Master Answer filed by the shipowners here, negated any
inference that Judge Lambros’ order was an “ultimatum”
requiring all answers to be interpreted as a waiver. Id.
Accordingly, the Sixth Circuit held that the MDL Court did not

7
abuse its discretion in granting the motion to dismiss. 2 Id. at
308.
The merchant mariners argue, and the majority
concludes, that the shipowners waived their jurisdictional
defense by filing an answer in light of Judge Lambros’ order.
That reading, however, does not align with this Court’s ruling
in Neifeld, where we declined to permit a procedurally proper
option—objecting to jurisdiction in the answer itself—to be
taken away from a defendant. 438 F.2d at 428. Judge Lambros
did not have the authority to order that filing an answer alone
constituted waiver, because such an order would violate the
Federal Rules.
Second, the majority “conclude[s] that the shipowners
unequivocally waived their personal jurisdiction defenses
when they filed answers in the Northern District of Ohio”
because “Judge Lambros and the parties expressly agreed that
the shipowners could demonstrate waiver of the defense by
filing an answer.” Maj. Op. at § III(B). To support its holding,
the majority references Judge Lambros’ statement that, “unless
of course the parties otherwise announce” their intention to
waive jurisdiction, the cases not under the court’s jurisdiction
“will be transferred.” App. at 404. He went on to state that
transfers would be effective on January 7 or 8 “unless [the

2
The majority distinguishes its holding from Kalama by
concluding that our Circuit’s precedent demands a different
result. However, the decisions cited by the majority are
distinguishable from this case because, here, the shipowners
did not actively litigate the merits of their cases. Post at §
II(B).

8
defendants], by announcing to the court in the filing of [their]
answers on January 5th,” waived jurisdiction 3. App. at 404.
To reverse the MDL Court’s finding that filing an
answer did not necessarily amount to a waiver, we must hold
that this finding was a “clearly erroneous finding of fact,”
lacking support in the record. However neither Judge Lambros
nor Special Master Martyn stated that a defendant could not
both file an answer and preserve its jurisdictional defense.
Instead, the court indicated that, to save defendants from
having to make separate filings, defendants could inform the
court of their desire to consent to its jurisdiction by filing
answers. On the other hand, if a defendant did not file an
answer, the court stated that it would assume that the party
desired for its case to be transferred. These rulings leave room
for a third option: to file an answer so that the case would not
be automatically transferred, while also maintaining a
jurisdictional defense and preserving the issue of dismissal for
appellate review. 4

3
A reasonable interpretation of the phrase “by announcing” is
that Judge Lambros expected answers to include an express
waiver of jurisdiction, if that was the party’s desire.
4
This option may have been particularly important as
defendants did not receive notice of the intended transferee
courts until December 29, though answers were due January 5.
The majority states that the shipowners could have taken their
chances with default judgment instead, but this suggestion
imposes an unnecessary risk where the shipowners had the
option to preserve their defense for appeal, as they did. Cf.
Neifeld, 438 F.3d at 429 n.13 (finding no waiver where a
defendant asserted a jurisdictional defense alongside a

9
 The language in the shipowners’ Master Answer No. 2
unequivocally demonstrates the shipowners’ intention to
exercise this third option. For instance, the shipowners stated
that “[e]ach defendant maintains that the transfers are contrary
to law” and has filed a motion to certify the order of transfer
for interlocutory appeal. App. at 1133. They further provided
that “[b]y filing its answer, defendant specifically does not
waive its defense of lack of personal jurisdiction or waive its
objections to the propriety of the transfers.” App. at 1133-34.
The MDL Court’s factual findings were not “clearly
erroneous” because the record contains sufficient evidence to
support them. See Agathos, 977 F.2d at 1504. First, the district
court could not have intended to remove defendants’ right to
preserve their personal jurisdiction defense when filing an
answer because the Federal Rules of Civil Procedure expressly
permit this action. Second, the hearing transcripts and the
language in the shipowners’ answers support the conclusion
that filing an answer alone would not waive personal
jurisdiction, reflecting the propriety of the MDL Court’s
factual conclusions.
B. The MDL Court Did Not Make a Misapplication of
Law.
The MDL Court correctly noted that a party can waive
its personal jurisdiction defense by participating in the
litigation and taking advantage of the forum. App. at 51 (citing
Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee,
456 U.S. 694, 703 (1982)). Applying this law, the majority
concludes that the shipowners implicitly waived their
jurisdictional defense through both their active participation in

compulsory counterclaim because the party had no alternative
but to assert the claim in that filing or waive it).

10
the litigation and their dilatoriness (or inactivity). However,
we must defer to the MDL Court’s factual findings when
applying them to the law.
The shipowners did not actively participate in litigation
in the Northern District of Ohio. As the merchant mariners
note, a party might waive its personal jurisdiction defense
where it “actually litigates the underlying merits or
demonstrates a willingness to engage in extensive litigation in
the forum.” Appellants’ Br. at 19 (citing In re Tex. E.
Transmission Corp. PCB Contamination Ins. Coverage Litig.,
15 F.3d 1230, 1236 (3d Cir. 1994)). In Transmission Corp.,
we held that a party waived its personal jurisdiction defense by
actively litigating the action, including pursuing counterclaims
and moving for summary judgment. Id. Likewise, in Bel-Ray,
we held that a party may waive its personal jurisdiction defense
if it seeks affirmative relief from the court. Bel-Ray Co. v.
Chemrite Ltd., 181 F.3d 435, 443-44 (3d Cir. 1999). There,
defendants actively litigated motions for summary judgment
and enjoinment against arbitration, and then, only after the
court denied summary judgment, did they file affidavits in
support of their personal jurisdiction defense. Id. at 444.
Because of this participation, we concluded that defendants
submitted themselves to the court’s jurisdiction. Id.
The majority concludes that the shipowners continued
to actively litigate their cases in the Northern District of Ohio
after filing their answers. However, the only activity reflected
in the record pertains directly to the issue of jurisdiction and
transfer. Participation related to jurisdictional issues does not
reflect the merits-based litigation that this Court has required
to find implicit waiver. See Transmission Corp., 15 F.3d at
1236; Bel-Ray, 181 F.3d at 443. Unlike the parties in
Transmission Corp. and Bel-Ray, the shipowners did not
pursue counterclaims, seek summary judgment, move to

11
enjoin, or otherwise actively litigate the merits of the case.
Instead, the shipowners’ filings and participation reflect the
complexity of this matter’s jurisdictional issues, which
ultimately led to the creation of an MDL.
On the other hand, the majority concludes that the
shipowners forfeited their defense to personal jurisdiction
because they “fail[ed] to diligently pursue it in the Northern
District of Ohio.” Maj. Op. at § III(B). 5 However, the record
reflects that the case idled; the merchant mariners were not
actively prosecuting these cases during this time period; and
the shipowners were not delaying litigation or delinquent. See
Adams v. Trs. of the N.J. Brewery Emps.’ Pension Tr. Fund, 29
F.3d 863, 874-75 (3d Cir. 1994) (explaining that dilatoriness
can be shown through “extensive or repeated delay or
delinquency” or by a plaintiff’s years-long failure to
prosecute). Once Judge Robreno activated the cases against
the shipowners, they filed renewed motions to dismiss for lack
of personal jurisdiction and began pursuing the issue now
before this Court. The shipowners’ behavior reflects diligence,
not dilatoriness.
III
The MDL Court rested its factual conclusions in the
record and properly applied those facts to the correct legal
standard. That its application of the law resulted in a different
conclusion than the majority’s does not reflect an “abuse of
discretion,” but the type of fair-minded disagreement upon
which our judicial system is premised. Therefore, I respectfully
dissent. I would affirm the ruling of the District Court.

5
On appeal, the merchant mariners did not argue that the
shipowners forfeited their personal jurisdiction defense due to
dilatoriness.

12