The 25-year-old asbestos multidistrict litigation has shed dozens of shipowner defendants after U.S. District Judge Eduardo Robreno pruned the docket this week.
Noting the complex history of the litigation, which started in Ohio in the mid-1980s and swelled to include 50,000 cases after it was transferred as an MDL to the Eastern District of Pennsylvania, Robreno granted motions to dismiss filed by defendants claiming a lack of personal jurisdiction in 418 cases, but denied motions to dismiss in 147 cases citing improper service of process.
"Now, some 25 years later, the court, with the assistance of counsel, is called upon to divine the meaning of less-than-pellucid orders entered long ago by prior courts, and to disentangle the parties from a web of procedural knots that have thwarted the progress of this litigation," Robreno said.
"With this background in mind, the court turns to the adjudication of important threshold issues. One, does the court have personal jurisdiction over the defendants? Two, was service of process upon defendants improper?"
Robreno's answer to both questions was no.
Going back to 1989, when the cases were still in the Northern District of Ohio, Robreno recounted that judge's ruling that there was no personal jurisdiction over shipowner defendants who had either no connection or a tenuous connection to the jurisdiction.
"At the same hearing, and crucial to the issues before the court now, Judge [Thomas D.] Lambros stated that he would transfer the cases rather than grant the defendants' motions to dismiss," Robreno said. But, months later, "for no reason apparent on the record, Judge Lambros did not issue severance orders identifying which claims and defendants were being transferred. … Therefore, although the cases were ordered 'transferred,' in reality, they were never transferred to other jurisdictions and remained on the docket of the Northern District of Ohio until they were transferred and consolidated into MDL 875 beginning in 1991."
The plaintiffs argued that the defendants had either waived or forfeited their personal-jurisdiction defense by filing answers after Lambros' orders.
The defendants, however, argued that they were compelled to file answers to the orders, so they didn't voluntarily waive their defense. Also, they noted that they had filed a motion for interlocutory appeal on the issue of personal jurisdiction that Lambros never ruled on, according to the opinion.
Robreno looked to Ohio's long-arm statute and held that none of its nine categories of contacts would establish personal jurisdiction for the defendants that had some contact in that jurisdiction.
He explained that the "plaintiffs' complaints do not make any jurisdictional allegations about any of defendants' specific activities that purportedly caused injury to plaintiffs. They do not identify how any of their claims arise from defendants' limited contacts with Ohio. As these defendants' contacts do not fall within the statutorily enumerated situations which give rise to personal jurisdiction, there is no personal jurisdiction over these defendants."
Also, Robreno held that the defendants didn't waive their right to raise a personal-jurisdiction defense because they had initially raised it in a timely manner — first in 1987 — and because they didn't participate in the litigation of their own volition but, instead, following court orders.
"Essentially, defendants are now, for the first time since 1989, being given the chance to argue the issue of personal jurisdiction before the court," Robreno said.
After agreeing with the defendants that there is no personal jurisdiction, he dismissed the plaintiffs' argument that he should then transfer the cases to other permissible jurisdictions.
"In a seminal case, the Supreme Court held that, after an MDL transferee court has concluded pretrial proceedings, the court cannot then transfer the case to itself for trial," he said, referring to the U.S. Supreme Court's 1998 opinion in Lexecon v. Milberg Weiss Bershad Hynes & Lerach.
However, on the 147 motions from the defendants arguing that there had been improper service of the initial suits, Robreno agreed with the plaintiffs that their counsel had complied with Ohio law governing service.
Assuming that the plaintiffs can produce signed "green cards" to prove service, they have met the requirements of state law, Robreno said.
(Copies of the 31-page opinion in Bartel v. Various Defendants, PICS No. 13-2510, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)