                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 17a0526n.06

                                           No. 16-3408


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

HENRY KALAMA; HERMAN COLLADO; ROY                        )
M. JACKSON; FERMIN AGUILAR; JOHN J.                      )                          FILED
LYNAM; JUNEST P. PONSON; HARRY G.                        )                    Sep 13, 2017
SHANNON; BILLIE JENKINS; LUIS CACERES;                   )                DEBORAH S. HUNT, Clerk
and JEREMIAH TODD,                                       )
                                                         )
       Plaintiffs-Appellants,                            )
                                                         )
v.                                                       )
                                                         )
MATSON NAVIGATION COMPANY, INC.;                         )
OCEANIC STEAMSHIP CO., INC.; AMERICAN                    )
PRESIDENT LINES, LTD.; AMERICAN MAIL                     )      ON APPEAL FROM THE
LINES; KEYSTONE SHIPPING CO.; MARITIME                   )      UNITED STATES DISTRICT
TRANSPORT LINES, INC.; AMICAN TRADING                    )      COURT FOR THE
& PRODUCTION CORP.; WEYERHAEUSER                         )      NORTHERN DISTRICT OF
COMPANY;     CENTRAL      GULF      LINES                )      OHIO
STEAMSHIP; CENTRAL GULF LINES, INC.;                     )
CENTRAL GULF STEAMSHIP CORP.; MYSTIC                     )
STEAMSHIP CORP.; ALCOA STEAMSHIP                         )
COMPANY, INC.; DELTA STEAMSHIP LINES,                    )
INC.; MISSISSIPPI SHIPPING CO., INC.;                    )
AMERADA HESS CORP.; AMERICAN TRADING                     )
TRANSPORTATION CO., INC.; and CHAS, KURZ                 )
& CO., INC.,                                             )
                                                         )
       Defendants-Appellees.                             )
                                                         )



BEFORE:        ROGERS, COOK, and STRANCH, Circuit Judges.

       ROGERS, Circuit Judge. This case arose in the late 1980s, when merchant marine

plaintiffs began filing asbestos-liability suits against ship-owner and manufacturing defendants in
No. 16-3408, Henry Kalama, et al. v. Matson Navigation Co., Inc., et al.


the Northern District of Ohio. At that time, the N.D. of Ohio ruled that it lacked personal

jurisdiction over many of the defendants and indicated that it would transfer the relevant cases to

scattered venues with proper jurisdiction.                  Eventually, the cases were consolidated into

multidistrict litigation in the Eastern District of Pennsylvania. The E.D. of Pennsylvania held

again in 2013 that the N.D. of Ohio lacks personal jurisdiction over the relevant defendants and

that those defendants had not waived or forfeited their personal-jurisdiction defense. The E.D. of

Pennsylvania accordingly dismissed thousands of parties. Now, twelve plaintiffs appeal the E.D.

of Pennsylvania’s decision as it relates to nineteen defendants. The E.D. of Pennsylvania did not

abuse its discretion when it decided that the nineteen defendant–appellees did not waive or

forfeit their personal-jurisdiction defense in the twelve plaintiff–appellants’ suits.

                                                           I.

         Numerous merchant marine plaintiffs began suing various ship-owners and asbestos

manufacturers and suppliers in the late 1980s in the N.D. of Ohio for injuries related to asbestos

exposure on commercial vessels. In re Asbestos Prods. Liab. Litig. (No. VI) (Bartel Opinion),

965 F. Supp. 2d 612, 614–15 (E.D. Pa. 2013). These plaintiffs became known as the maritime

docket (“MARDOC”) plaintiffs, and Judge Thomas Lambros presided over their cases in the

N.D. of Ohio at that time.1 Id. at 615. Among the earliest filings in the N.D. of Ohio were ship-

owner defendants’ motions to dismiss for lack of personal jurisdiction.

         Judge Lambros held a hearing on these motions to dismiss on October 31, 1989, at which

he ruled that a significant number of the defendants were not subject to personal jurisdiction in



1
  Twelve of those original MARDOC plaintiffs, represented by The Jaques Admiralty Law Firm, are the appellants
in this appeal. Throughout this opinion, “plaintiff–appellants” refers to this group of twelve, while “MARDOC
plaintiffs” refers to the broader group of merchant-marine plaintiffs who originally filed asbestos-liability lawsuits in
the N.D. of Ohio. Nineteen of the original ship-owner defendants, or their successors in interest, represented by
Thompson Hine, are the appellees in this appeal. “Defendant–appellees” refers to this group of nineteen, while
“ship-owner defendants” refers to the larger group of entities that were originally sued in the N.D. of Ohio.

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No. 16-3408, Henry Kalama, et al. v. Matson Navigation Co., Inc., et al.


Ohio. It is undisputed that defendant–appellees are among the group of defendants who had no

specific contacts with the state of Ohio and therefore were not subject to personal jurisdiction

there under Judge Lambros’s ruling. Instead of granting the defendants’ motions to dismiss,

however, Judge Lambros announced that the relevant cases should be transferred to a venue with

proper jurisdiction. At a later hearing, on November 21, 1989, Judge Lambros indicated that, if a

defendant did not wish to be transferred, it could “waive the in personam jurisdiction problem”

by filing an answer with the court by January 5, 1990.

       Judge Lambros formalized these rulings in two orders.           Order No. 40, issued on

November 22, 1989, incorporated the October 31 and November 21 rulings, instructed the

MARDOC plaintiffs to “report the choice of forum as to those cases which are” subject to

transfer for lack of personal jurisdiction, and stated 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” by January 5, 1990. Order No. 41 followed on December 29, 1989. The order

transferred numerous cases “as to defendant shipowners which were determined not to be subject

to in personam jurisdiction” to various federal district courts with personal jurisdiction over

those defendants. The order also states: “Shipowner defendants, not subject to this transfer

order, shall file answers by January 5, 1990 in accordance with the Order issued at the November

21, 1989 MARDOC conference.” Although Order No. 41 purported to transfer cases to scattered

courts across the country, those transfers never actually occurred.

       The ship-owner defendants did two things on December 29, 1989, in response to Judge

Lambros’s orders. First, they moved the N.D. of Ohio to certify Order No. 40 for immediate,

interlocutory review. Second, they filed two master answers, both of which expressly preserved




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No. 16-3408, Henry Kalama, et al. v. Matson Navigation Co., Inc., et al.


the defendants’ personal-jurisdiction defense. Master Answer No. 2, the more detailed of the

two, reads:

               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.

The court never ruled on the defendants’ motion to certify Order No. 40 for interlocutory appeal.

       The MARDOC plaintiffs were also unhappy with Judge Lambros’s decision to transfer

their claims across the country and on February 13, 1990, filed a motion to transfer all

defendants to a single forum.     All ship-owner defendants represented by Thompson Hine

vehemently opposed the motion to transfer in toto. Their brief in opposition states:

               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 the expense of litigating these cases in as
       many as 13 different jurisdictions simultaneously, and to take advantage of the
       consolidated handling available in this Court.

       ....

               Furthermore, some nonresident defendants who are not subject to the
       personal jurisdiction of this Court elected to waive that valuable due process right
       and submit themselves to the Court’s jurisdiction to take advantage of this Court’s
       experience in the handling of mass tort litigation, the consolidated handling of
       cases available in this Court, and to avoid the inconvenience of litigating these
       cases simultaneously in 13 scattered jurisdictions. After having pressured those
       defendants into submitting to jurisdiction here, plaintiffs now seek to turn the
       tables on them and scatter the cases against them to the four winds on the basis
       that a court may transfer a case under Sec. 1404(a) where the court has
       jurisdiction over the defendant. The interests of justice do not favor such tactics.



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No. 16-3408, Henry Kalama, et al. v. Matson Navigation Co., Inc., et al.


Judge Lambros denied the motion to transfer in toto.

       As the litigation continued in the N.D. of Ohio, a group of twenty cases was set to be

tried together there. After four of the twenty had been tried, Judge Lambros held a hearing on

January 8, 1991, to discuss the remaining sixteen. After deciding that a magistrate judge would

oversee the remaining sixteen cases, Judge Lambros turned his attention at the hearing to two

groups of forty-four cases each, one assigned to Ohio and one assigned to Michigan. In the

ensuing discussion, a Thompson Hine attorney asserted:

               I had one point that I wanted to be sure that the Court understood; we did
       not agree or concede to trials of any of these cases in Detroit. 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.

One group of forty-four cases was eventually transferred to the Eastern District of Michigan.

Once there, the defendants who had been transferred argued for retransfer to the N.D. of Ohio,

and petitioned the Sixth Circuit for a writ of mandamus to halt proceedings in the E.D. of

Michigan. Because the forty-four cases transferred to the E.D. of Michigan did not include any

of plaintiff–appellants’ cases, the statements made in opposition to the transfer in these filings

have little relevance to this appeal.

       Later in 1991, the Judicial Panel on Multidistrict Litigation (JPML) consolidated asbestos

litigation from around the nation into MDL No. 875, located in the E.D. of Pennsylvania. Bartel

Opinion, 965 F. Supp. 2d at 615. The ship-owner defendants represented by Thompson Hine in

the MARDOC litigation in the N.D. of Ohio strongly opposed the consolidation and transfer.

They argued to the JPML that, because a litigation plan was already in place in the N.D. of Ohio,

the cases should remain there. The MARDOC cases were nevertheless transferred to the MDL

court in the E.D. of Pennsylvania, where they were essentially inactive from 1996 to 2008, when



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No. 16-3408, Henry Kalama, et al. v. Matson Navigation Co., Inc., et al.


they were reassigned to Judge Robreno and reactivated. See Bartel Opinion, 965 F. Supp. 2d at

615.

       The next important step came in 2013, when the E.D. of Pennsylvania, through “the

Bartel Opinion,” 965 F. Supp. 2d 612, granted 418 defendants’ motions to dismiss for lack of

personal jurisdiction. These motions to dismiss required the E.D. of Pennsylvania to decide

whether the N.D. of Ohio—the transferor court that would eventually oversee trials in the

MARDOC cases—could exercise personal jurisdiction over the ship-owner defendants. While

deciding the motions to dismiss, the MDL court first recognized, as the N.D. of Ohio had in

1989, that the N.D. of Ohio lacks personal jurisdiction over those defendants who did not

maintain any specific contacts with Ohio. See id. at 619–20. The MDL court then rejected the

MARDOC plaintiffs’ argument that the ship-owner defendants had waived their personal-

jurisdiction defense by filing answers in the N.D. of Ohio, explaining:

       [I]t is apparent from the record that despite filing answers, defendants did not
       intend to waive the defense. In addition to including standard language about the
       personal jurisdiction defense, the answers included prefaces that specifically
       stated that defendants were filing the answers “under protest” pending review by
       the Court of Appeals of Judge Lambros’ decision to transfer rather than dismiss
       the cases. In seeking to comply with Judge Lambros’ orders, the 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.

              By filing answers which clearly identified the defense, while at the same
       time seeking interlocutory review of Judge Lambros’ order, defendants preserved
       and did not waive the defense.

Id. at 621–22 (footnote omitted) (citations omitted).

       The E.D. of Pennsylvania also denied the MARDOC plaintiffs’ request to transfer the

claims against the defendants over which there was no personal jurisdiction in Ohio to a venue

with proper jurisdiction. Id. at 622–23. The court reasoned that, under Lexecon Inc. v. Milberg

                                                -6-
No. 16-3408, Henry Kalama, et al. v. Matson Navigation Co., Inc., et al.


Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998), an MDL transferee court may not transfer a

case under 28 U.S.C. § 1404(a) to another district court. Bartel Opinion, 965 F. Supp. 2d at 622.

The court further reasoned that, even if Lexecon allowed it to directly transfer the MARDOC

plaintiffs’ cases to another district, no good cause for such transfer existed. Id. at 623. The court

explained:

                Plaintiffs continued filing thousands of cases in the Northern District of
        Ohio after Judge Lambros stated in 1989 that the court did not have personal
        jurisdiction over the defendants. Being on notice that there was no personal
        jurisdiction over the defendants in the Northern District of Ohio, and having
        chosen to continue the litigation there, Plaintiffs cannot complain that it is now
        unjust for the motions to dismiss to be granted.

Id. (citation omitted).

        The MDL court faced an additional 5,974 motions to dismiss in 2014 in “the Jacobs

Opinion,” In re Asbestos Products Liability Litigation (No. VI) (Jacobs Opinion), MDL No. 875,

2014 WL 944227 (E.D. Pa. Mar. 11, 2014). While arguing against these motions to dismiss, the

MARDOC plaintiffs relied on additional evidence that the ship-owner defendants had abandoned

their personal-jurisdiction defense. None of the evidence persuaded the E.D. of Pennsylvania.

First, the MDL court rejected the MARDOC plaintiffs’ attempt to rely on Thompson Hine’s

response in opposition to the motion to transfer in toto from February 1990, reasoning that the

response “is not evidence that any specific defendant waived the defense of lack of personal

jurisdiction.” Id. at *3, *5. The court held the same for Thompson Hine’s opposition to

consolidation into MDL No. 875, reasoning that the evidence “merely shows that defendants

resisted the idea of being included in a federal asbestos MDL.” Id. at *3–5. Furthermore, the

court construed the statements made in opposition to transfer to the E.D. of Michigan at the

January 8, 1991 hearing as relevant “only [to] those sixteen specific cases” being tried in the

N.D. of Ohio at the time. Id. at *3, *5. Because those sixteen cases were not before the E.D. of

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No. 16-3408, Henry Kalama, et al. v. Matson Navigation Co., Inc., et al.


Pennsylvania, the court disregarded the evidence. See id. at *5. Finally, the court did not accord

any weight to an affidavit from Hartley Martyn, who served as Special Master for the N.D. of

Ohio MARDOC litigation from 1988 to 1991 and recalled that the defendants represented by

Thompson Hine wished to waive their personal-jurisdiction defense at that time. See id. at *4,

*6. The court questioned whether Martyn’s declaration was even admissible, then reasoned that

it was unhelpful anyway, because it “fails to show that defendants affirmatively waived the

defense.” Id. at *6.

       The MDL court summed up its reasoning:

       Viewed together, the Court is not persuaded that these exhibits show by a
       preponderance of the evidence a universal waiver by all defendants, in all cases,
       in perpetuity. What the snippets from briefs and letters reflect, at best, is that
       some defendants in these cases either considered or would have been willing to
       accept a court order keeping their individual case in the Northern District of Ohio
       (as opposed to being transferred to various districts) in return for waiving the
       defense of personal jurisdiction.

Id. at *5 (footnote omitted).

       In two orders from March 11 and April 14, 2014, the E.D. of Pennsylvania granted

thousands of motions to dismiss based on the Bartel and Jacobs Opinions.             Each of the

defendant–appellees was dismissed from plaintiff–appellants’ cases through these orders. At

some point later in 2014 or early in 2015, the MDL court recommended that each of the

plaintiff–appellants’ cases be remanded back to the N.D. of Ohio, and the JPML remanded the

cases accordingly. In most cases, only one defendant, John Crane Inc., remained by the time the

JPML remanded to the N.D. of Ohio, although several plaintiff–appellants retained claims

against Chesterton Co., Gatke Corp., and General Refractories—none of which are parties to this

appeal. After remand, the N.D. of Ohio completely disposed of plaintiff–appellants’ cases by

dismissing these remaining defendants on March 15, 2016. Plaintiff–appellants timely appealed



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No. 16-3408, Henry Kalama, et al. v. Matson Navigation Co., Inc., et al.


from the March 15, 2016 final judgment as well as from the E.D. of Pennsylvania’s orders

dismissing defendant–appellees for lack of personal jurisdiction.

                                                II.

                                                A.

       As a preliminary matter, we have appellate jurisdiction to review the E.D. of

Pennsylvania’s orders. Although both parties argue that appellate jurisdiction is proper, the court

has an independent obligation to examine its own jurisdiction, Hitchcock v. Cumberland Univ.

403(B) DC Plan, 851 F.3d 552, 557 (6th Cir. 2017). 28 U.S.C. § 1294(1) provides for appellate

jurisdiction over “appeals from reviewable decisions” of a U.S. district court in the “court of

appeals for the circuit embracing the district.” Pursuant to § 1294(1), we are usually asked to

review judgments arising entirely out of a district court within the Sixth Circuit’s territorial

jurisdiction. This case presents an odd scenario, which asks us to review non-final orders issued

by the MDL transferee court in the E.D. of Pennsylvania, outside the Sixth Circuit’s territorial

jurisdiction. Because the MDL court’s orders became reviewable only after plaintiff–appellants’

cases reached a final judgment in the N.D. of Ohio, however, we have appellate jurisdiction over

the orders.

       EEOC v. Northwest Airlines, Inc., 188 F.3d 695 (6th Cir. 1999), compels this conclusion.

In that case, the underlying lawsuit originated in the E.D. of Michigan. The E.D. of Michigan

transferred the case for the parties’ convenience under 28 U.S.C. § 1404(a) to the District of

Minnesota, which then granted summary judgment to the defendants on several claims. The

District of Minnesota next transferred the case back to the E.D. of Michigan, again under

§ 1404(a), and the E.D. of Michigan granted summary judgment to the defendants on the

remaining claims. The plaintiff appealed both summary-judgment orders to the Sixth Circuit. In



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No. 16-3408, Henry Kalama, et al. v. Matson Navigation Co., Inc., et al.


response to the defendants’ argument that the appeal of the District of Minnesota’s order was

untimely, we noted that the order did not become appealable until after the case had been

retransferred to the E.D. of Michigan and that court had entered a final judgment. See Nw.

Airlines, 188 F.3d at 700. We then held that we had appellate jurisdiction over the District of

Minnesota’s order: “We thus find ourselves in the position of reviewing a final judgment

partially disposed of in a district court of another circuit. Although unusual, this case is properly

before us.” Id.

       This case’s procedural posture closely resembles that in Northwest Airlines. Plaintiff–

appellants ask us to review a partial dismissal issued by a district court outside of the Sixth

Circuit.   Partial dismissals are not appealable final decisions under 28 U.S.C. § 1291 and

ordinarily become reviewable only after an action reaches a final judgment. In re Refrigerant

Compressors Antitrust Litig., 731 F.3d 586, 589 (6th Cir. 2013).                Thus, the E.D. of

Pennsylvania’s partial dismissals became appealable only after the N.D. of Ohio, a district court

within the Sixth Circuit’s territorial jurisdiction, issued its final judgment on March 15, 2016. As

we exercised jurisdiction to review a final judgment from the E.D. of Michigan that had been

“partially disposed of” elsewhere in Northwest Airlines, we may now exercise appellate

jurisdiction over the N.D. of Ohio’s final judgment, which was partially disposed of in the E.D.

of Pennsylvania.

       This result also accords with § 1294, which limits our appellate jurisdiction to

“reviewable decisions” of the district courts within our territorial jurisdiction. A partial dismissal

is not “reviewable” until it can be appealed—generally, when it “merges” into a final, appealable




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No. 16-3408, Henry Kalama, et al. v. Matson Navigation Co., Inc., et al.


judgment.2 See Hill v. Henderson, 195 F.3d 671, 675–76 (D.C. Cir. 1999); see also Jones v.

InfoCure Corp., 310 F.3d 529, 534 (7th Cir. 2002). Here, the E.D. of Pennsylvania’s orders

became appealable, and therefore “reviewable decisions,” only through the N.D. of Ohio’s final

judgment.       Because that final judgment arose within our territorial jurisdiction, § 1294(1)

required plaintiff–appellants to appeal to the Sixth Circuit.

                                                           B.

         On the merits, the MDL court did not abuse its discretion when it decided that the

Thompson Hine defendants, including defendant–appellees, did not waive or forfeit their

personal-jurisdiction defense. Under the unusual circumstances of this case, the court reasonably

concluded that the MARDOC plaintiffs failed to prove waiver or forfeiture, either through the

ship-owner defendants’ filing answers in response to Judge Lambros’s directives, or through

their conduct later in the litigation.

         First, the MDL court correctly decided that the act of filing answers, alone, did not

constitute waiver. Once Judge Lambros denied the ship-owner defendants’ motions to dismiss

for lack of personal jurisdiction and elected to transfer the cases instead, he instructed those

defendants who wished to “waive the in personam jurisdiction problem” to file answers by

January 5, 1990. Plaintiff–appellants frame Judge Lambros’s order as an ultimatum—waive

personal jurisdiction in the N.D. of Ohio by filing answers there, or be transferred out—and

argue that the only logical inference when the ship-owner defendants filed answers in response is

that the defendants were consenting to personal jurisdiction. However, the defendants’ express

objection to personal jurisdiction in the N.D. of Ohio in their master answers, along with the

motion requesting leave to immediately appeal Judge Lambros’s transfer order, negates that

2
 Alternatively, a district court may enter a final judgment as to some, but not all, of the parties or claims in an action
under Federal Rule of Civil Procedure 54(b), or certify a partial dismissal for an immediate, interlocutory appeal
under 28 U.S.C. § 1292(b).

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No. 16-3408, Henry Kalama, et al. v. Matson Navigation Co., Inc., et al.


inference. The ship-owner defendants’ intent could not have been clearer from their assertion in

Master Answer No. 2 that they were filing answers “under protest” to “preserve the status quo”

while they continued to seek dismissal through an immediate appeal of Orders 40 and 41.

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.

       Furthermore, even assuming that Judge Lambros considered defendant–appellees’

personal-jurisdiction defense waived—given that he moved forward with the MARDOC

litigation and ignored the defendants’ motion to certify Orders 40 and 41 for interlocutory

review—it was not an abuse of discretion for the district court to nevertheless reach the opposite

conclusion. Perhaps the record supports an inference that the parties considered the defendants’

personal-jurisdiction defense waived once the defendants filed answers, but that is not the only

reasonable inference. Given the strength of the ship-owner defendants’ statements in their

answers that they did not intend to forgo their personal-jurisdiction defense, and in light of the

full record at that juncture, it was within the MDL court’s discretion to take the answers at face

value and reject plaintiff–appellants’ waiver argument.

       Second, the MDL court did not abuse its discretion when it determined that the

MARDOC plaintiffs’ proffered supplemental evidence does not prove the ship-owner defendants

forfeited their personal-jurisdiction defense.     Such forfeiture occurs when a defendant’s

“submissions, appearances and filings [give] ‘[p]laintiff a reasonable expectation that [the

defendant] will defend the suit on the merits or must cause the court to go to some effort that

would be wasted if personal jurisdiction is later found lacking.’” Gerber v. Riordan, 649 F.3d



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No. 16-3408, Henry Kalama, et al. v. Matson Navigation Co., Inc., et al.


514, 519 (6th Cir. 2011) (quoting Mobile Anesthesiologists Chi., LLC v. Anesthesia Assocs. of

Hous. Metroplex, P.A., 623 F.3d 440, 443 (7th Cir. 2010)).

       To start, the ship-owner defendants’ objections against transfer of a group of forty-four

cases to the E.D. of Michigan—raised before Judge Lambros at the January 8, 1991 hearing, in a

motion for retransfer, and in a petition to the Sixth Circuit for a writ of mandamus—cannot

prove forfeiture, because the forty-four transferred cases did not include plaintiff–appellants’

cases. While the cases that were transferred to the E.D. of Michigan did include several of the

named defendant–appellees, it was only in their capacity as defendants in lawsuits brought by

MARDOC plaintiffs that are not party to this appeal. On this record, it would be improper to

impute statements about waiver of personal jurisdiction made on behalf of a defendant in one

lawsuit to the same defendant in a separate suit. Thus, this evidence does not govern whether the

parties in this appeal forfeited their personal-jurisdiction defense.

       Moreover, the fact that the Third Circuit relied on this evidence in In re Asbestos

Products Liability Litigation (No. VI), 661 F. App’x 173 (3d Cir. 2016), to overturn the MDL

court’s decision to grant several ship-owner defendants’ motions to dismiss is unpersuasive,

because unlike here, the Third Circuit’s review involved cases that were actually transferred to

the E.D. of Michigan. Three MARDOC plaintiffs, Wilson, Braun, and Guiden, appealed the

MDL court’s dismissal of their claims against two ship-owner defendants, Matson Navigation

Co. and American President Line, to the Third Circuit. Id. at 174. The Third Circuit’s reasoning

in holding that the MDL court abused its discretion when it granted these defendants’ motions to

dismiss was specific to the particular actions being appealed; the Third Circuit noted that the

ship-owner defendants before it “consented at [the January 8, 1991] hearing to proceed with

‘these cases’ in the Northern District of Ohio, and that phrase clearly refers to the clusters that



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Chief Judge Lambros intended to transfer to the Eastern District of Michigan, which included the

lawsuits brought by Wilson, Braun, and Guiden.” Id. at 177. The court later cabined its holding

again by stating, “it was incorrect to dismiss the cases before us.” Id. at 179 (emphasis added).

The Third Circuit neither relied on any evidence aside from the relevant ship-owner defendants’

objections to transfer to the E.D. of Michigan nor ruled on the forfeiture issue aside from

Matson’s and American’s waiver in Wilson’s, Braun’s, and Guiden’s lawsuits. Thus, the Third

Circuit’s opinion has no relevance to this appeal.3

         The MDL court also did not abuse its discretion by finding an insufficient showing of

forfeiture in the remaining proffered evidence, including the Martyn affidavit and Thompson

Hine’s statements in opposition to transfer in toto and in opposition to consolidation into MDL

No. 875. Under both Third Circuit and Sixth Circuit law, the burden was on the MARDOC

plaintiffs to convince the MDL court that personal jurisdiction exists over the ship-owner

defendants in the N.D. of Ohio. See Control Screening LLC v. Tech. Application & Prod. Co.,

687 F.3d 163, 167 (3d Cir. 2012); MAG IAS Holdings, Inc. v. Schmückle, 854 F.3d 894, 899 (6th

Cir. 2017). While the remaining evidence could reasonably support an inference that some ship-

owner defendants represented by Thompson Hine, at some point, consented to personal

jurisdiction in the N.D. of Ohio to avoid transfer to scattered venues, the evidence is too vague to

render forfeiture the only reasonable conclusion. Faced with thousands of motions to dismiss for


3
  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. See In re Asbestos Prods. Liab. Litig., 661 F. App’x at 177–78 (the Third Circuit’s reasoning);
Jacobs Opinion, 2014 WL 944227, at *5 (the MDL court’s reasoning). Reading the hearing transcript as a whole, it
is clear that the objection arose after Judge Lambros had switched the topic of conversation from the sixteen cases
set for trial in the N.D. of Ohio to the group of cases destined for the E.D. of Michigan. 01/08/1991 Tr., Appellant
App. 1 at 1029–1117 (PDF 1039–1127). Furthermore, it would not make sense for the defendants to object to a
“transfer” of the sixteen cases set for trial in the N.D. of Ohio, because Judge Lambros was not considering
transferring those cases. However, because the forty-four cases set for transfer to the E.D. of Michigan did not
include any of the cases currently before us, the MDL court’s error nevertheless does not render its decision an
abuse of discretion as to the twelve plaintiff–appellants’ cases.

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No. 16-3408, Henry Kalama, et al. v. Matson Navigation Co., Inc., et al.


lack of personal jurisdiction, the MDL court was justifiably skeptical that statements about

“several nonresident defendants” having waived their personal-jurisdiction defense and general

opposition to consolidation into multidistrict litigation could prove that each of the ship-owner

defendants forfeited its defense. 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.

                                                C.

       Furthermore, the MDL court did not violate the law-of-the-case doctrine by granting

defendant–appellees’ motions to dismiss for lack of personal jurisdiction, because the court’s

decision did not diverge from Judge Lambros’s prior ruling. Although the parties dispute

whether Judge Lambros “granted” or “denied” the ship-owner defendants’ motions to dismiss in

1989, how Judge Lambros technically disposed of the motions is irrelevant, because the issues he

decided at that time are clear. First, Judge Lambros ruled that the N.D. of Ohio lacked personal

jurisdiction over those ship-owner defendants who had no specific contacts with Ohio. Second,

he ruled that the cases involving defendants over which the N.D. of Ohio had no personal

jurisdiction should be transferred rather than dismissed. The law-of-the-case doctrine “comes

into play only with respect to issues previously determined.” Holloway v. Brush, 220 F.3d 767,

777 (6th Cir. 2000) (quoting Quern v. Jordan, 440 U.S. 332, 347 (1979)). Thus, the MDL

court’s decision implicates the doctrine only if it contradicted either issue previously decided by

Judge Lambros, and it did not.

       The MDL court agreed that the N.D. of Ohio lacks personal jurisdiction over those ship-

owner defendants without specific contacts to the state. See Bartel Opinion, 965 F. Supp. 2d at

620. Furthermore, the MDL court did not revisit Judge Lambros’s initial decision to transfer the



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No. 16-3408, Henry Kalama, et al. v. Matson Navigation Co., Inc., et al.


relevant cases out of the N.D. of Ohio. Finally, the remaining issues before the MDL court—

whether the ship-owner defendants waived their personal-jurisdiction defense and whether

Lexecon permits an MDL transferee court to directly transfer a case to another district—had not

been decided previously in the MARDOC litigation. Based on the entirety of the record, the

law-of-the-case doctrine did not prohibit the MDL court from granting defendant–appellees’

motions to dismiss for lack of personal jurisdiction.

                                                 D.

       Finally, the MDL court did not err by dismissing, rather than transferring, the defendants

over which the N.D. of Ohio lacks personal jurisdiction. Under Lexecon, the MDL court had no

power to directly transfer plaintiff–appellants’ cases to a venue with personal jurisdiction over

defendant–appellees. In Lexecon, an MDL transferee court used 28 U.S.C. § 1404(a), which

allows a district court, “[f]or the convenience of parties and witnesses, [and] in the interest of

justice,” to transfer “any civil action to any other district or division where it might have been

brought,” to transfer an MDL case to itself for trial. The Supreme Court held that such “self-

transfer” was improper. Lexecon, 523 U.S. at 40. The Court relied on 28 U.S.C. § 1407(a),

which requires that each transferred MDL action “be remanded by the [JPML] at or before the

conclusion of . . . pretrial proceedings to the district from which it was transferred unless it shall

have been previously terminated.” This provision leaves two options for an MDL transferee

court at the close of pretrial proceedings: terminate the case or allow the JPML to remand the

case to the originating, transferor court. See id. at 34–37. To allow the transferee court to

transfer a case to itself for trial under § 1404(a) would “conclusively thwart[] the Panel’s

capacity to obey the unconditional command of § 1407(a)” to remand cases at the close of

pretrial proceedings. Id. at 36.



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No. 16-3408, Henry Kalama, et al. v. Matson Navigation Co., Inc., et al.


       The Court’s reasoning in Lexecon is not limited to self-transfer under § 1404(a). The

Court specifically stated that its reasoning applies to any § 1404(a) transfer: “[W]e find that the

statutory language of § 1407 precludes a transferee court from granting any § 1404(a)

motion . . . .” Id. at 41 n.4. That § 1407 prohibits an MDL transferee court from directly

transferring an action to another district court makes sense, because any direct transfer would

thwart the JPML’s ability to remand to the originating court at the end of pretrial proceedings.

Thus, the E.D. of Pennsylvania correctly held that it had no authority to transfer plaintiff–

appellants’ claims to a district with proper jurisdiction.

       Furthermore, the MDL court did not abuse its discretion by refusing plaintiff–appellants’

proposed alternative of requesting the JPML to remand to the N.D. of Ohio with instructions for

the N.D. of Ohio to transfer the cases to an appropriate venue. This approach is allowed but not

mandated under Lexecon. See id. at 39. The MDL court correctly reasoned that yet another

transfer after nearly thirty years of litigation would not serve the interest of justice, and there is

no guarantee that, had the court recommended remand and subsequent transfer, the JPML would

have adopted the recommendation.

       Finally, the MDL court appropriately dismissed defendant–appellees after deciding that

the N.D. of Ohio could not exercise personal jurisdiction over them. Plaintiff–appellants make a

strange argument that § 1407(a) and Lexecon compelled the MDL court to recommend to the

JPML that the defendants be remanded to the N.D. of Ohio.               Under plaintiff–appellants’

argument: § 1407(a) requires remand unless an action was “previously terminated”; “previously

terminated” means “previously terminated on the merits”; and dismissal for lack of personal

jurisdiction is not “on the merits.” Thus, according to plaintiff–appellants, once the MDL court

dismissed the relevant defendants for lack of personal jurisdiction, the MARDOC plaintiffs’



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No. 16-3408, Henry Kalama, et al. v. Matson Navigation Co., Inc., et al.


claims against those defendants were not “terminated,” and the JPML was still required to

remand those particular defendants to the N.D. of Ohio. Following this logic would defeat the

purpose of consolidated MDL litigation, which is for the MDL transferee court to weed out

improper parties and claims before trial, including dismissing parties over which the transferor

court could not exercise personal jurisdiction. That is what the E.D. of Pennsylvania did here,

and neither § 1407 nor Lexecon demands a different result.

                                                      III.

        The judgment of the district court is affirmed.4




4
 Because the MDL court’s orders dismissing defendant–appellees for a lack of personal jurisdiction stand, we need
not address defendant–appellees’ motion to dismiss this appeal as barred by res judicata.

                                                      -18-
