SOSA et al v. FOSTER WHEELER COMPANY et al

Filing 103

MEMORANDUM IN SUPPORT OF ORDER RE: THE MOTIONS TO DISMISS FOR LACK OF PERSONAL JURISDICTION LISTED IN EXHIBIT 'A' AND THE MOTIONS TO DISMISS DUE TO IMPROPER SERVICE OF PROCESS LISTED IN EXHIBIT 'B'. (SEE PAPER NO. 4195 ON 02-MD-875 FOR COMPLETE DOCUMENT PDF) SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 3/11/2014. 3/12/2014 ENTERED AND COPIES MAILED AND E-MAILED. (aeg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
IN RE: ASBESTOS PRODUCTS
:
LIABILITY LITIGATION (No. VI) :
:
JACOBS, ET AL.
:
:
Plaintiffs,
:
:
v.
:
:
A-C PRODUCT LIABILITY
:
TRUST, ET AL.
:
:
Defendants.
:

CONSOLIDATED UNDER
MDL DOCKET No. 875

Certain cases on the
02-md-875 Maritime Docket
(MARDOC), listed in the
attached exhibits

M E M O R A N D U M
EDUARDO C. ROBRENO, J.
I.

March 11, 2014

INTRODUCTION
In Bartel v. Various Defendants, ___ F. Supp. 2d ___,

No. 2 MDL 875, 2013 WL 4516651, at *2 (E.D. Pa. Aug. 26, 2013)
(Robreno, J.), this Court granted 418 motions to dismiss for
lack of personal jurisdiction in various Group 1 cases on the
maritime docket (MARDOC)1 in MDL 875. In the same memorandum, the
Court denied 147 motions to dismiss due to improper service. The
cases at issue in Bartel were filed in the Northern District of
Ohio by the Jaques Admiralty Law Firm on behalf of various
merchant marines, representatives, survivors and spouses. The
Additional information on the background and history
of the MARDOC litigation, including discussion on how the cases
were separated into different groups, can be found in this
Court’s opinion in Bartel. 2013 WL 4516651, at *1-2.
1

1

motions to dismiss were filed by various shipowner defendants.
Now, before the Court are 6,267 motions to dismiss in
various Northern District of Ohio MARDOC Groups 4, 5, 6, and 7
cases.2 As in Bartel, these cases involve shipowner defendants
who assert the defense of lack of personal jurisdiction or
improper service of process. The papers submitted by the parties
in connection with these motions are nearly identical to the
papers submitted in connection with the motions in Bartel. The
only additional evidence plaintiffs have submitted with the
instant motions is a supplement containing alleged “new”
evidence that defendants waived the defense of lack of personal
jurisdiction.3 It is to this “new” evidence that this memorandum
is addressed.
For the reasons outlined in Bartel and this
memorandum, the 5,974 motions to dismiss for lack of personal
jurisdiction listed in Exhibit “A,” attached, will be granted,

2

A hearing was held on the present 6,267 motions on
February 27, 2014. The Court also listed sixty-eight motions for
the hearing that asserted there was insufficient service of
process (i.e., no record of service). The parties agreed at the
hearing to resolve those motions on their own. Therefore, the
Court need not reach the issue of whether service was
insufficient in those cases.
3

Plaintiffs are jointly represented by Jaques Admiralty
Law Firm and Motley Rice LLC. A majority of the defendants are
represented by Thompson Hine LLC who account for 5,728 of the
motions to dismiss. Accordingly, plaintiffs’ supplemental
evidence primarily focuses on the actions of Thompson Hine
throughout the litigation.
2

and the defendants who filed the motions will be dismissed from
the cases.
As to the 293 motions to dismiss due to improper
service of process listed in Exhibit “B,” attached, the motions
will be denied.

II.

LEGAL STANDARD
A.

Motions to Dismiss based on Lack of Personal
Jurisdiction under Rule 12(b)(2)
In considering a Rule 12(b)(2) motion to dismiss for

lack of personal jurisdiction, “[t]here are specific analytical
steps [the Court] must take in determining whether personal
jurisdiction can be asserted over a nonresident defendant[,]”
and “Rule 4(e) of the Federal Rules of Civil Procedure is the
starting point.” Pennzoil Prods. Co. v. Colelli & Assoc., Inc.,
149 F.3d 197, 200 (3d Cir. 1998) (citing Mellon Bank (East)
PSFS, Nat. Ass’n v. Farino, 960 F.2d 1217, 1221 (3d Cir. 1992)).
Rule 4(e) allows for personal jurisdiction over non-resident
defendants to the extent authorized under the law of the state
in which the district court sits. For purposes of a Rule 4(e)
analysis in the present cases, the forum state in this case is
Ohio.4
On issues of federal law or federal procedure, the MDL
transferee court applies the law of the circuit in which it sits
(here, the Third Circuit). See Various Plaintiffs v. Various
Defendants (“Oil Field Cases”), 673 F. Supp. 2d 358, 363 (E.D.
4

3

B.

Motions to Dismiss based on Improper Service under
Rule 4
Under Federal Rule of Civil Procedure 4(m), “[i]f a

defendant is not served within 120 days after the complaint is
filed,” then “the court . . . must dismiss the action without
prejudice against that defendant or order that service be made
within a specified time. But if the plaintiff shows good cause
for the failure, the court must extend the time for service for
an appropriate period.” The Third Circuit has interpreted this
rule to mean that, even without good cause, the court can, in
its discretion, provide additional time to cure rather than
dismiss the defendants. Petrucelli v. Bohringer & Ratzinger, 46
F.3d 1298, 1305 (3d Cir. 1995).

III. DISCUSSION
A.

Motions to Dismiss based on Lack of Personal
Jurisdiction under Rule 12(b)(2)
1.

Summarizing Bartel

In Bartel, there were two categories of shipowner
defendants: (1) those with no Ohio contacts; and (2) those with
Ohio contacts that were unrelated to the plaintiffs’ injuries.
2013 WL 4516651, at *4. This Court held that it did not have
personal jurisdiction over either type of defendant because Ohio

Pa. 2009) (Robreno, J.) (citing In re Korean Air Lines Disaster,
829 F.2d 1171, 1178 (D.C. Cir. 1987)).
4

does not recognize general jurisdiction. Id. at *5-6; Kauffman
Racing Equip., L.L.C. v. Roberts, 930 N.E.2d 784, 790 (Ohio
2010); Conn v. Zakharov, 667 F.3d 705, 712 (6th Cir. 2012).
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. Bartel, 2013 WL 4516651, at *6.
The plaintiffs in Bartel next argued that the
shipowner defendants waived the right to raise the defense of
lack of personal jurisdiction. This Court held that the
shipowner defendants did not waive the defense of lack of
personal jurisdiction because they consistently raised the
defense throughout the litigation, and did not participate in
the litigation of their own volition. Bartel, 2013 WL 4516651,
at *6 (citing Ins. Corp. of Ireland, Ltd. v. Compagnie des
Bauxites de Guinee, 456 U.S. 694, 703 (1982)).
“First, as early as 1987, while the cases were still
in the Northern District of Ohio, defendants raised the issue of
lack of personal jurisdiction.” Id. (citations omitted).
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. Id. “Essentially, defendants are now, for
5

the first time since 1989, being given the chance to argue the
issue of personal jurisdiction before the Court.” Id. Second,
the shipbuilder defendants in Bartel did not intend to waive the
defense despite filing answers. Id. at *7. “[T]he 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.”5 Id.; see also Fed. R. Civ. P. 8(b).
Finally, this Court held that transfer was not
permitted due to the Supreme Court’s decision in Lexecon Inc. v.
Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998).
Bartel, 2013 WL 4516651, at *7-8. Accordingly, the shipowner
defendants’ motions to dismiss based on lack of personal
jurisdiction were granted. Id. at *8.
2.

Plaintiffs’ Supplemental Evidence and Defendants’
Response

Following this Court’s decision in Bartel, the instant
plaintiffs submitted essentially identical responses to the

At a hearing in 1989, Judge Lambros found that there
was no personal jurisdiction over approximately 100 shipowner
defendants named in the plaintiffs’ complaints. However, Judge
Lambros stated at the hearing that he would transfer the cases
rather than grant the defendants’ motions to dismiss. Defendants
requested that Judge Lambros certify the issue for interlocutory
appeal because they asserted that transfer was unlawful and
dismissal was the proper remedy. Ultimately, Judge Lambros never
ruled on the motion for certification and never issued severance
orders transferring the cases. Bartel, 2013 WL 4516651, at *3.
5

6

shipowner defendants’ motions to dismiss for lack of personal
jurisdiction. However, plaintiffs also included “new” evidence
that allegedly shows that defendants waived the defense of lack
of personal jurisdiction either explicitly, or through their
conduct throughout the litigation.6
i.

Exhibits B and C

Plaintiffs attach ex-parte letters counsel sent to
Judge Lambros in 1990 and 1991. The letters highlight for the
Judge which shipowner defendants “initially objected to
jurisdiction but thereafter by way of their answer or, otherwise
waived jurisdiction.” Plaintiffs again assert that by filing
answers defendants waived jurisdiction. Defendants argue that
the answers were filed with the defense of lack of personal
jurisdiction intact. Defendants also note that this argument was
rejected by this Court in Bartel. 2013 WL 4516651, at *7.
ii.

Exhibit G

Plaintiffs attach “Thompson Hine’s Response in
Opposition to Plaintiffs’ Motion to Transfer in Toto.” In
“Plaintiffs’ Motion to Transfer in Toto,” plaintiffs moved Judge
Plaintiffs submitted this new evidence by
incorporating it into their response to the individual
defendants’ motions, or by separately filing a “supplemental
response” on the docket. The exhibits referenced in this
memorandum refer to “Plaintiffs’ Supplemental Response and
Memorandum of Law in Opposition to Defendants’ Motion to Dismiss
for Lack of Personal Jurisdiction.” See No. 02-md-875, ECF No.
3365 (Groups 4 & 5); ECF No. 3701 (Group 6); and ECF No. 3997
(Group 7).
6

7

Lambros to transfer all of a particular plaintiff’s claims to
one district.7 Plaintiffs point to the following from Thompson
Hine’s response:
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.
Defendants counter that the cited portions in no way
prove that every defendant waived the defense of lack of
personal jurisdiction. Defendants assert that the primary
argument in their response was that transfer was unlawful and
that dismissal was the proper remedy. Defendants also note that
there is no way to tell which “nonresident defendants” waived
jurisdiction, how they waived this defense, and whether any of
See Exhibit E. Plaintiffs argued that their claims
were being “splintered” because some defendants requested
transfer to certain districts, while other defendants elected to
stay in Ohio (by filing answers).
7

8

these nonresident defendants were even represented by Thompson
Hine.8
iii. Exhibit L
Plaintiffs point to a January 1991 hearing transcript
in front of Judge Lambros in which Thompson Hine stated:
. . . but trials of the Ohio cases in
Detroit are something that our clients
waived jurisdictional objections to proceed
here in Cleveland.
Defendants note that this hearing transcript involved a group of
twenty cases in a trial cluster in Cleveland, Ohio. Defendants
had won three of the four cases that had been tried, and had
agreed to waive personal jurisdiction in the other sixteen cases
remaining in that cluster for strategic, case-specific purposes.
iv.

Exhibit Q

Plaintiffs cite to Thompson Hine’s 1991 brief
submitted to the Judicial Panel on Multidistrict Litigation
prior to the creation of MDL 875. The defendants opposed
consolidation of the MARDOC cases in the proposed asbestos MDL.
Plaintiffs argue that this opposition was another sign that
Thompson Hine wanted the cases to remain in the Northern
District of Ohio and, as a consequence, that they had waived
their opposition to personal jurisdiction.
8

Defendants not represented by Thompson Hine have
argued at the hearing, and in their papers, that statements made
by Thompson Hine pertaining to any purported waiver cannot be
attributed to them.
9

Defendants note that they opposed consolidation
because they felt the maritime cases were legally and factually
dissimilar than many of the state-law based asbestos claims
across the country. Defendants also assert that they opposed
consolidation because they could have received final orders in
the Northern District of Ohio more quickly, such that they could
have appealed Judge Lambros’ decision to not dismiss the cases
on personal jurisdiction grounds.
v.

Exhibit R

Plaintiffs cite to dockets from the Northern District
of Ohio and argue that defendants have not raised the defense of
personal jurisdiction in cases that have since been remanded
from the MDL to the Northern District of Ohio. Defendants note
that this argument was raised in the briefing and hearing in
Bartel and was not considered persuasive by this Court.
vi.

Exhibit T

Finally, Plaintiffs attach a declaration from Hartley
Martyn, signed October 22, 2013. Mr. Martyn was appointed by
Judge Lambros and served as Special Master for the MARDOC
litigation in the Northern District of Ohio from 1988 to 1991.
Mr. Martyn asserts that he worked closely with counsel for
plaintiffs and defendants through his capacity as Special
Master. Mr. Martyn also avers the following:
5.

After

MARDOC

Order
10

41

was

issued,

counsel from Thompson Hine & Flory
informed Judge Lambros and me that a
large majority of their clients desired
to waive the defense of lack of
personal
jurisdiction
in
order
to
remain in the Northern District of
Ohio.
6.

Counsel from Thompson Hine & Flory also
informed Judge Lambros and me of their
clients’ intent to not object on the
basis of personal jurisdiction for the
ongoing filing of MARDOC cases filed in
the Northern District of Ohio and to
allow the cases to be litigated in that
district.

7.

Although not recorded in a formal
proceeding, there was an agreement
between Leonard C. Jaques on behalf of
Plaintiffs and Thomas O. Murphy of
Thompson Hine & Flory for cases to
continue to be filed in the Northern
District of Ohio without Defendants
threatening to file motions to dismiss
or motions to transfer based on a lack
of personal jurisdiction. Thomas O.
Murphy made this agreement in his
capacity as counsel for all Thompson
Hine & Flory Defendants.

Defendants note that the declaration gives no date
when this waiver occurred and does not discuss the circumstances
of the waiver. Defendants state that the declaration does not
note which defendants “desired” to waive the defense, and which
defendants “did not desire” to waive the defense. Moreover,
defendants assert that the declaration does not specify which
defendants actually did waive the defense (rather than just
“desire” to waive the defense). Finally, defendants assert that
11

there is no formal agreement on the record, or in writing,
regarding any of these purported statements made in the presence
of Mr. Martyn. Therefore, defendants argue that the Court should
disregard this declaration.9
3.

Analysis

The “supplemental” evidence presented by plaintiffs
does not alter the analysis of the outcome of the Court’s
decision in Bartel granting the defendants’ motions to dismiss
for lack of personal jurisdiction. That decision surveyed the
twenty-plus years of history of these cases and found that the
plaintiffs had failed to show that either: (1) under Ohio law,
the Court could exercise personal jurisdiction over the
defendants; or (2) that the defendants had not timely asserted
or had waived their personal jurisdiction defense.10
Because the defense of lack of personal jurisdiction
is raised, plaintiffs have the burden of showing, by a
9

Defendants also object that the declaration is
inadmissible hearsay, is inherently unreliable, lacks
foundation, is vague, is uncorroborated, is irrelevant, and is
contrary to the record.
10

At the February 27, 2014 hearing, defendants
represented by Thompson Hine agreed to withdraw their motions to
dismiss in any cases where plaintiffs could produce coast guard
records establishing that a particular plaintiff sailed on a
particular defendant’s ship in the navigable waters of Ohio.
Plaintiffs have thirty days from the entry of this memorandum
and accompanying order to produce such records to the Court.
Upon such a showing, the Court will vacate the order as to those
defendants’ motions.
12

preponderance of the evidence, the existence of jurisdiction as
to each defendant in each individual case. Control Screening LLC
v. Tech. Application and Prod. Co., 687 F.3d 163, 167 (3d Cir.
2012).

Plaintiffs now seek to revisit the Court’s decision,

particularly as it relates to the argument that defendants have
waived the defense of lack of personal jurisdiction.11 However,
the “supplemental” evidence now proffered does not tip the scale
in favor of plaintiffs’ argument.
First, Exhibits B and C, the ex-parte letters
submitted to Judge Lambros, are not new evidence of waiver. The
Court determined in Bartel that the filing of answers did not
constitute waiver because defendants filed the answers under
protest and asserted the defense in their answer. 2013 WL
4516651, at *7. Next, Exhibit G is not evidence that any
specific defendant waived the defense of lack of personal
jurisdiction. The attached document does not identify which

11

At the hearing, plaintiffs’ counsel also appealed to
this Court for equitable relief, citing the interests of
justice, the extensive history of the litigation, and fairness
to plaintiffs and the potentially few remaining peripheral
defendants involved in these MARDOC cases if the Court were to
grant the shipowner defendants’ motions to dismiss. First, as
the Court previously pointed out, the result is not inequitable
in that plaintiffs’ counsel continued to file cases in the
Northern District of Ohio after Judge Lambros had ruled that the
court could not exercise personal jurisdiction over the
defendants. Bartel, 2013 WL 4516651, at *8. In any event, a plea
to equity cannot trump the result that due process and Ohio law
mandates in these cases.
13

“nonresident defendants” consented to the waiver, and under what
circumstances this alleged waiver was effectuated. It is
plaintiffs’ burden to demonstrate these facts in each individual
case. See Control Screening, 687 F.3d at 167.
Plaintiffs urge that Exhibit G illuminates defendants’
intention to waive the defense in all cases and take advantage
of the forum in the Northern District of Ohio. Plaintiffs also
point to Exhibit Q in support of this assertion. Exhibit Q
merely shows that defendants resisted the idea of being included
in a federal asbestos MDL; an arguably justifiable resistance
given the length of time that these cases have lingered in MDL
875. In no way does this exhibit show that defendants globally
waived a defense that they had consistently raised since the
inception of this litigation.
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.12 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
12

As the Court noted in Bartel, “[n]ot all of the
defendants who are currently in the MARDOC cases were in the
cases as early as the time when Judge Lambros required
defendants to file answers . . . . Clearly, the plaintiffs’
waiver arguments would not be applicable to the defendants who
were added to the cases later.” 2013 WL 4516651, at *7 n.12.
14

the Northern District of Ohio (as opposed to being transferred
to various districts) in return for waiving the defense of
personal jurisdiction.13
Defendants concede that Exhibit L proves waiver, but
only in those sixteen specific cases - none of which are before
the Court. Similarly, Exhibit R shows that some defendants may
have not argued the defense of lack of personal jurisdiction on
remand. Importantly, as these cases are remanded, they are not
before this Court. Moreover those defendants’ legal decisions
cannot be imputed on other defendants or other plaintiffs’
cases. Put simply, plaintiffs have not produced any casespecific evidence of record identifying which defendants in the
instant cases actually elected to make the strategic legal
decision to waive the defense of lack of personal jurisdiction.
See Ins. Corp. of Ireland, 456 U.S. at 703 (1982).
Assuming that it is admissible, the declaration of
then-Special Master Hartley Martyn fails to show that defendants
affirmatively waived the defense of lack of personal

13

Any suggestion that the court informally, or off the
record before the MDL was created and the cases were transferred
to the Eastern District of Pennsylvania, recognized that
defendants had agreed to submit to jurisdiction in Ohio is
rejected. “Courts must speak by orders and judgments, not by
opinions, whether written or oral, or by chance observations or
expressed intentions made by courts during, before, or after
trial, or during argument.” Murdaugh Volkswagen, Inc. v. First
Nat’l Bank of South Carolina, 741 F.2d 41, 44 (4th Cir. 1984).
15

jurisdiction.14 Mr. Martyn carefully couches his declaration in
terms of defendants’ “desire” to waive said defense.
Importantly, Mr. Martyn does not point to any matters of record
which would support his twenty-plus-year-old memory of the
events.
For all of these reasons, based on the evidence
presented, the Court finds that plaintiffs have failed to show
by a preponderance of the evidence that the Court has personal
jurisdiction over the defendants. See Control Screening, 687
F.3d at 167.
B.

Motions to Dismiss based on Improper Service under
Rule 4
1.

Summarizing Bartel

In Bartel, the Court held that service of process is
proper under Ohio law if “plaintiffs can produce sufficient
14

The Court is troubled by the submission of Special
Master Martyn’s declaration on behalf of a party to the
litigation. A Special Master “is a surrogate of the Court and in
that sense the service performed is an important public duty of
high order in much the same way as is serving in the Judiciary.”
Louisiana v. Mississippi, 466 U.S. 921, 921 (1984) (Burger,
C.J., dissenting from Court’s approval of certain special master
expenses). Mr. Martyn’s declaration borders on advocacy rather
than impartiality. The Code of Judicial Conduct for United
States Judges Canon 3.C(1) ”provides that ‘[a]nyone . . . who is
an officer of a judicial system performing judicial functions,
including an officer such as a . . . special master . . . is a
judge for the purpose of this Code.’ Id. at I-58. It is this
prophylactic protection against bias on the part of ‘[a]ny one .
. . performing judicial functions,’ expressly including special
masters, that Canon 3.C(1) of the Code of Judicial Conduct is
designed to achieve.” Jenkins v. Sterlacci, 849 F.2d 627, 630-31
(D.C. Cir. 1988).
16

proof which verifies and confirms that through the mailing of
the process papers, defendant received notice of the pending
action.” 2013 WL 4516651, at *10 (citing Piercey v. Miami Valley
Ready-Mixed Pension Plan, 110 F.R.D. 294, 295 (S.D. Ohio 1986)).
The Court determined that “a signed returned green card,
evidencing receipt by defendant of the original process papers,
serves as sufficient proof of service” under Ohio law and the
law of the case. Id.
The Court directed Magistrate Judge Hey to oversee the
process of allowing defendants to challenge the authenticity and
genuineness of the green cards that plaintiffs produced. Id. at
*10 n.23.
2.

Analysis

Here, no new evidence has been presented to disturb
the Court’s decision in Bartel regarding improper service of
process. Accordingly, defendants’ motions to dismiss based on
improper service of process are denied. Magistrate Judge Hey has
provided the moving defendants in all MARDOC cases with an
opportunity to challenge the authenticity and genuineness of the
green cards produced by plaintiffs. See No. 02-md-875, ECF No.
3382.15

15

Any arguments regarding the timeliness of service of
process or proof of service will be addressed at that time.
17

IV.

CONCLUSION
For the reasons outlined above, the motions to dismiss

for lack of personal jurisdiction listed in Exhibit “A,”
attached, will be granted and the defendants who filed the
motions will be dismissed from the cases.
As to the motions to dismiss due to improper service
of process listed in Exhibit “B,” attached, the motions will be
denied.
An appropriate order follows.

18