                            In the
 United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 02-4022
IN THE MATTER OF: THE COMPLAINT OF MIKE’S, INC.
AND MIKE’S MARINE, INC., for exoneration from or
limitation of liability,
                                      Plaintiffs-Appellants.
                         ____________
           Appeal from the United States District Court
                for the Southern District of Illinois
            No. 02-C-612—David R. Herndon, Judge.
                         ____________
       ARGUED JUNE 5, 2003—DECIDED JULY 25, 2003
                     ____________


  Before FLAUM, Chief Judge, and COFFEY and MANION,
Circuit Judges.
   FLAUM, Chief Judge. This case was originally brought in
federal district court in the Eastern District of Missouri
(hereinafter “the Missouri district court”). That court dis-
missed the case for improper venue. Appellants, Mike’s Inc.
and Mike’s Marine, Inc., then requested that the court,
instead of dismissing the suit, transfer it to the proper
venue to avoid statute of limitations problems that might
arise from dismissal. The court refused this request—a
decision that was later affirmed by the Eighth Circuit. In re
the Complaint of Mike’s Inc. (Mike’s, Inc. I), 317 F.3d 894
(8th Cir. 2003). Appellants then filed suit in the proper
venue of the Southern District of Illinois (hereinafter “the
Illinois district court”). As feared by the appellants, the suit
was dismissed as untimely. Appellants now challenge this
dismissal arguing, as they did below, that the Illinois dis-
2                                                No. 02-4022

trict court should have applied the principle of equitable
tolling to allow the complaint to be deemed timely. We are
not persuaded by this argument and we therefore affirm.


                     I. Background
   On June 4, 2001, Kristopher Tinnon brought suit against
appellants in the Circuit Court of Madison County, Illinois.
Tinnon asserted claims seeking damages for injuries he
allegedly sustained while aboard the M/V BIANCA, a
harbor tug owned and operated by appellants. Appellants
in turn filed a federal action for exoneration from or lim-
itation of liability under 46 U.S.C. §181 et seq. (such an
action seeks to limit any potential liability to the value of
the vessel, in this case the M/V BIANCA). That action was
filed in the district court for the Eastern District of Mis-
souri on November 29, 2001.
  This filing raised a question of venue. Proper venue for
such a suit, and what to do if venue is improper, is deter-
mined under Rule F(9) of the Supplemental Rules for Cer-
tain Admiralty and Maritime Claims:
    The complaint shall be filed in any district in which the
    vessel has been attached or arrested to answer for any
    claim with respect to which the plaintiff seeks to limit
    liability; or, if the vessel has not been attached or
    arrested, then in any district in which the owner has
    been sued with respect to any such claim. When the
    vessel has not been attached or arrested to answer the
    matters aforesaid, and suit has not been commenced
    against the owner, the proceedings may be had in the
    district in which the vessel may be, but if the vessel is
    not within any district and no suit has been commenced
    in any district, then the complaint may be filed in any
    district. For the convenience of parties and witnesses,
    in the interest of justice, the court may transfer the
    action to any district; if venue is wrongly laid the court
No. 02-4022                                                   3

    shall dismiss or, if it be in the interest of justice,
    transfer the action to any district in which it could have
    been brought. If the vessel shall have been sold, the
    proceeds shall represent the vessel for the purposes of
    these rules.
Tinnon argued to the district court that venue was proper
only in the Southern District of Illinois because the vessel
had not been attached and the appellants had been sued in
a state court located in the Southern District of Illinois.
Appellants argued that venue was proper in the Eastern
District of Missouri because the vessel had not been at-
tached, the owner had not been sued in a federal district,
and the vessel was located in the Eastern District of
Missouri. The difference in these two views turns on the
definition of the word “district” in the phrase “then in any
district in which the owner has been sued with respect to
any such claim.” It is either used to indicate a geographic
area, and thus the state suit had been brought in the
Southern District of Illinois, or to indicate a specific federal
court, and thus no suit had been brought in any district for
the purposes of determining venue. The former interpreta-
tion has been generally accepted, see, e.g., In re the Com-
plaint of Egan Marine Corp., 1999 U.S. Dist. LEXIS 17235
(N.D. Ill. Oct 18, 1999), In re the Complaint of Ensco Marine
Co., 1999 U.S. Dist. LEXIS 7385 (E.D. La. May 13, 1999), In
re the Complaint of T.J. Crosby, Inc., 1994 U.S. Dist. LEXIS
15086 (E.D. La. Oct. 17, 1994), and the later interpretation
on which appellants rely is supported by the weight of only
one district court case, In re A.W.I. Drilling and Workover,
Inc., 1991 U.S. Dist. LEXIS 5526 (E.D. La. Apr. 24, 1991).
The Missouri district court rejected appellants’ interpreta-
tion and dismissed the case without prejudice for improper
venue on April 17, 2002.
  Appellants then made a motion to alter or amend the
judgment of dismissal. In that motion they argued that the
correct resolution given the venue problem was not dis-
4                                                No. 02-4022

missal but transfer to the court where venue was proper. In
that motion they noted the possibility that if the case was
dismissed and then filed in the proper district it would be
deemed untimely since the limitations period for such a
filing had passed. They also directed the court’s attention to
the case of In re the Complaint of Mers, Inc., 4:01 CV 1453
AGF (E.D. Mo. March 14, 2002), a recently decided case
from the Eastern District of Missouri rejecting appellants’
arguments about the definition of “district” in Rule F(9),
but supporting their contention that transfer is the correct
disposition when venue is improper. Notably, both the
statute of limitations issue and the Mers case had not
previously been brought to the Missouri district court’s
attention. Based on appellants’ strategic maneuver of
withholding arguments and relevant case law from the
court until it was to their benefit to do otherwise, the
Missouri district court concluded that transfer was not
in the interest of justice. That ruling was appealed to the
Eighth Circuit, and the Eighth Circuit affirmed the deci-
sion of the Missouri district court. Mike’s, Inc. I, 317 F.3d
894.
  Meanwhile (prior to the decision of the Eighth Circuit),
appellants filed this suit in the Southern District of Illinois
on June 13, 2002. Under 46 U.S.C. § 185 a shipowner has
six months after receipt of notice of the underlying claim to
bring an action for limitation. Of course, on June 13, 2002,
just over a year had passed and the suit was therefore
untimely. The district court so ruled, rejecting appellants’
requests for it to apply the doctrine of equitable tolling. It
is from that ruling that appellants now appeal.


                      II. Discussion
  As its name implies, equitable tolling is a form of equita-
ble relief and therefore is restricted to those cases where
the claimant’s error in not bringing suit within the appro-
priate time period was made in good faith. Jones v. Madison
No. 02-4022                                                  5

Serv. Corp., 744 F.2d 1309, 1314 (7th Cir. 1984). Even so,
where we are dealing with two innocent parties, negligence
on the part of the party invoking the doctrine “can tip the
balance against its application.” Cada v. Baxter Healthcare
Corp., 920 F.2d 446, 453 (7th Cir. 1990). In refusing to
apply the doctrine of equitable tolling the district court for
the Southern District of Illinois concluded that appellants
had not acted in good faith when they filed and proceeded
with this case in the Eastern District of Missouri. In coming
to that conclusion the court relied upon numerous strategic
decisions made by the appellants. Among these was their
reliance on only one district court case in arguing that
venue was proper in the Eastern District of Missouri, their
failure to cite contrary authority, and their failure to bring
a relevant and contrary decision of the Eastern District of
Missouri to the attention of the judge.
   While we do not take issue with the district court’s
finding that appellants did not act in the good faith requi-
site to justify the application of equitable tolling, we
approach the question on narrower grounds. We cannot
conclude that appellants can be said to have acted in bad
faith simply by bringing the case in the Eastern District of
Missouri, even if they did so on the basis of only one district
court opinion from the Eastern District of Louisiana. While
it is true that the opinion they relied upon was not control-
ling in the Eastern District of Missouri, and had very weak
persuasive value even in the Eastern District of Louisiana,
see Ensco Marine Co., 1999 U.S. Dist. LEXIS 7385, T.J.
Crosby, Inc., 1994 U.S. Dist. LEXIS 15086; see also Mike’s
Inc. I, 317 F.3d at 897 (“Nearly every court that has
considered the meaning of the section permitting venue ‘in
any district in which the owner has been sued’ has adopted
the geographic view that Mr. Tinnon argues for.”), appel-
lants still could have made a good faith argument to the
Eastern District of Missouri that the analysis from A.W.I.
Drilling was correct and should be adopted. The issue was
previously unresolved in the Eighth Circuit, Mike’s Inc. I,
6                                                No. 02-4022

317 F.3d at 896 (“This case presents an issue of first
impression in our court.”), and appellants’ argument was
not frivolous, id. (“The structure of Mike’s argument is
appealing.”). Thus, we cannot say that it is bad faith to
bring a case in a certain venue based upon a nonfrivolous
argument that is not foreclosed by any controlling prece-
dent.
  Furthermore, we have reservations as to the district
court’s conclusion that it is bad faith for a party to fail to
cite every noncontrolling district court opinion that goes
against that party’s arguments. On certain divisive issues
such a rule may prove too strict a requirement for good
faith litigation. What concerns us more about appellants’
conduct was their specific failure to bring the Mers case to
the Missouri district court’s attention. Not only was Mers
decided contrary to appellants’ position and in the Eastern
District of Missouri, but the firm representing appellants
was also counsel to the party bringing the limitation action
in Mers. This is not a case where the appellants can claim
they were unaware of the contrary authority through lax
research or some other reason. Here appellants’ counsel had
actual knowledge of the Mers decision (they acknowledged
this much at oral arguments) and were clearly in the best
position of any party to bring this case to everyone’s
attention. Then, further evidencing their lack of good faith,
appellants finally did bring the Mers case to the district
court’s attention only after the court had ruled against
them on the question of the definition of “district”—on
which Mers was contrary to their position—and in support
of their claim for transfer rather than dismissal—on which
Mers supported their position. This position alone suggests
the absence of good faith. Added to this is their choice not
to seriously advance the transfer argument until after
losing the initial question and their failure to bring the
possible statute of limitations problem to the Missouri
district court’s attention. The result is an indication of bad
faith. Cf. Mike’s I, 317 F.3d at 898 (“Our intuition is that
No. 02-4022                                                   7

these decisions reflect a calculated trial strategy by Mike’s
counsel.”).
  Finally, granting Mike’s request to apply equitable tolling
would essentially undo the decisions of the Missouri district
court and the Eighth Circuit. For whatever equitable
tolling’s aims may be, the doctrine does not serve as a
means for, in effect, appealing decisions from one district
court in another. Mike’s should not be relieved from a
reasoned decision of the Eighth Circuit by the application
of equitable tolling in the Southern District of Illinois. The
Missouri district court and the Eighth Circuit held that
justice did not require transfer—that is virtually the same
as saying it would not have been equitable. We will not
arrive at a different result, particularly in light of the facts
and circumstances of this case.


                      III. Conclusion
  All three of the federal courts that have previously dealt
with this case have concluded that appellants acted strate-
gically and in the absence of good faith when they made
their arguments to the Missouri district court regarding the
propriety of venue in that court. We also have determined
that appellants’ conduct has foreclosed the application of
the doctrine of equitable tolling. The judgment of the
district court is AFFIRMED.

A true Copy:
       Teste:

                         ________________________________
                         Clerk of the United States Court of
                           Appeals for the Seventh Circuit


                    USCA-02-C-0072—7-25-03
