Heather Isringhausen Gvillo Mar. 28, 2014, 8:45pm

PHILADELPHIA (Legal Newsline) - Nearly 6,000 asbestos cases in the Multidistrict Litigation court against shipowner defendants have been dismissed.

On March 12, U.S. District Judge Eduardo Robreno who presides at the Eastern District of Pennsylvania granted 5,974 personal jurisdiction motions in cases transferred from the Northern District of Ohio.

Robreno stated that according to federal rules, personal jurisdiction over non-resident defendants is provided under the law of the state in which the district court sits, which would be Ohio in this case.

He added that the plaintiffs failed to show by a "preponderance of evidence" that the MDL court has personal jurisdiction over the defendants.

A total of 6,267 shipowner defendants filed motions to dismiss, but the 293 defendants alleging improper service of process were denied dismissal.

The plaintiffs are jointly represented by Jaques Admiralty Law Firm in Detroit and Motley Rice LLC of Mt. Pleasant, S.C.

A majority of the defendants are represented by Thompson Hine LLP of Cleveland, which can account for 5,728 of the motions to dismiss.

Robreno stated that documents submitted were nearly identical to those in connection with motions in the Bartel case, in which the judge held that it did not have personal jurisdiction because Ohio does not recognize general jurisdiction. However, plaintiffs in this case allege "new" evidence arguing that defendants waived their lack of personal jurisdiction defense.

Robreno addresses the new evidence specifically in his opinion.

"Because the plaintiffs' complaints did not make jurisdictional allegations about any of the shipowner defendants' specific activities that allegedly caused injury to the plaintiffs, this court found that there was no personal jurisdiction over the defendants," Robreno wrote.

The court also ruled that the defendants in Bartel did not waive their lack of personal jurisdiction defense because they consistently raised the defense throughout the litigation, and did not participate in the litigation of their own volition.

In fact, they raised the defense as early as 1987 when the cases were still in the Northern District of Ohio.

"Moreover, defendants' motions to dismiss have routinely been denied without prejudice as they have been ordered to participate in the litigation prior to the disposition of these motions on the merits," Robreno wrote.

"'Essentially, defendants are now, for the first time since 1989, being given the chance to argue the issue of personal jurisdiction before the court."

Also, the shipowner defendants in Bartel did not intend to waive the defense despite filing answers. In their answers, they specifically stated that they were filing answers under protest pending review by Judge Thomas Lambros' decision to transfer rather than dismiss the case.

Accordingly, the defendants' motions to dismiss based on lack of personal jurisdiction were granted.

As for the plaintiffs' new evidence, the plaintiffs again assert that by filing answers, the defendants in these cases waived jurisdiction.

However, the defendants responded that the answers were filed with the defense of lack of personal jurisdiction intact.

Robreno stated in his opinion that this is not new evidence and "does not tip the scale in favor of the plaintiffs' arguments."

The claimants also submitted a portion of defense law firm Thompson Hine's response from Bartel, which stated:

"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," Thompson Hine responded.

On the other hand, the defendants argue that the cited portions do not prove that every defendant waived their lack of personal jurisdiction defense.

In addition, the defendants claim there is no way to tell which "nonresident defendants" waived jurisdiction, how they waived the defense and whether any of them were even represented by Thompson Hine.

Robreno wrote that Thompson Hine's statement is not evidence that any specific defendant waived the defense of lack of personal jurisdiction.

The plaintiffs presented more briefs from Thompson Hine allegedly revealing that he wanted the cases to remain in the Northern District of Ohio, consequently waiving the defendants' opposition to personal jurisdiction.

The defendants explained that they opposed consolidation because their maritime cases were vastly different from state-law based asbestos claims across the country and could have received final orders in the district more quickly.

Robreno wrote that the plaintiff's argument only shows that the defendants resisted the idea of being included in a federal asbestos MDL, which is "an arguably justifiable resistance given the length of time that these cases have lingered in MDL 875."

Viewing both exhibits mentioning documents from Thompson Hine, Robreno added that 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 in return for waiving the defense of personal jurisdiction."

Lastly, the plaintiffs presented a declaration written by Northern District of Ohio Special Master from 1988-1991 Hartley Martyn, which states Thompson Hine told him and Lambros that their clients desired to waive the defense of lack of personal jurisdiction in order to remain in the district.

While the statements were not recorded in a formal proceeding, there was an agreement to continue filing in the district without threatening to file motions to dismiss based on lack of personal jurisdiction, the claimants added.

The defendants responded saying the declaration is too vague and never included a formal agreement on the record. The allegation also doesn't give a date the waiver allegedly occurred, doesn't discuss circumstances and doesn't list the defendants allegedly desiring to waive.

Robreno wrote that Martyn's declaration fails to show the defendants waived their lack of personal jurisdiction defense.

"Importantly, Mr. Martyn does not point to any matters of record which would support his twenty-plus-year-old memory of the events," he added.

Robreno also briefly addressed the cases that were denied dismissal, stating there is no new evidence presented to change the court's Bartel decision regarding improper service of process.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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