531 F.2d 1243
187 U.S.P.Q. 733
CHRISTOPHER J. FOSTER, INC., Appellant,v.NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, and Whitman,Requardt& Associates, Appellees.CHRISTOPHER J. FOSTER, INC., Appellee,v.NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, and Whitman,Requardt& Associates, Appellants.
Nos. 75--1076, 75--1077.
United States Court of Appeals,Fourth Circuit.
Argued June 11, 1975.Decided Oct. 22, 1975.

Alan E. J. Branigan, Arlington, Va.  (Griffin, Branigan & Butler, Arlington, Va., on brief), for Christopher J. Foster, Inc.
Allen Kirkpatrick, Washington, D.C.  (Cushman, Darby & Cushman, Kevin E. Joyce, Washington, D.C., Donald N. Rothman, Gordon, Feinblatt, Rothman, Hoffberger & Hollander, Baltimore, Md., Elliott I. Pollock, and Pollock, Philpitt & Vande-Sande, Washington, D.C., on brief), for Newport News Shipbuilding and Dry Dock Co. and Whitman, Requardt & Associates.
Before WINTER, CRAVEN and BUTZNER, Circuit Judges.
BUTZNER, Circuit Judge:

1
This appeal involves the validity of claims 1, 4, 5, 7, and 11 of United States Patent 3,124,935 for graving docks, issued to Christopher J. Foster on March 17, 1964, and the charge that Newport News Shipbuilding and Dry Dock Co. and Whitman, Requardt & Associates, engineers engaged by Newport News to construct a dry dock, infringed the patent.  We affirm the district court's judgment that the patent was anticipated by prior art and that even if it were valid, the doctrine of file wrapper estoppel defeats the claim of infringement.

2
The contested patent refers to an improvement in a graving dock, which is a basin excavated in the shore of a body of water.  Since ships float into the dock, the floor must be below the water table.  Consequently, when the gates are closed and water is expelled, hydrostatic pressure is exerted on the underside of the dock by seepage beneath the floor.  This problem is especially serious in water-bearing soil where seepage is heavy.  If the pressure is not accommodated in some manner, either the floor will rupture or the entire structure will shift.  Rupture is the usual result.

3
Various types of docks have been constructed to counter hydrostatic pressure.  The simplest is the gravity dock, which uses the sheer weight of a concrete floor, often forty feet thick, to withstand the pressure.  In a partially relieved dock, seepage water escapes upwards through floor drains to lessen the pressure.  A third kind of graving dock, the one involved here, is the fully relieved dock, in which water underneath the floor is drained by a network of pipes below the floor to a sump from which it is pumped.  Since it reduces pressure more effectively than the others, a fully relieved dock requires the thinnest floor of the three.

4
Essentially, the Foster patent involves a system of drain pipes in a gravel bed beneath the concrete dock floor.  Set on a grade, the pipes empty into a sump from which a pump removes accumulated water.  Vents allow atmospheric pressure to reach the underside of the dock floor so the water will flow to the sump by gravity.1 The district court held that the invention disclosed by the claims in issue had been fully anticipated by the St. John dry dock, built in New Brunswick more than 50 years ago, and that it was therefore invalid under 35 U.S.C. §§ 102(a) and (b).

5
The St. John dry dock was built on rock, not water-bearing soil.  Nevertheless, its designers made allowance for water seepage.  An article in The Engineering Journal describes it as having a subfloor drainage system to relieve hydrostatic pressure.2 Although the article does not mention venting, the St. John dock had open vertical drains extending through the floor.  The district court, accepting the testimony of expert witnesses, found that these openings vent the underside of the floor to the atmosphere.  This finding is amply supported by the evidence and is binding on us.  Though relevant, the St. John dock was not considered by the patent examiner, and therefore the statutory presumption of the Foster patent's validity is at least weakened.  See Heyl & Patterson, Inc. v. McDowell Co., 317 F.2d 719, 722 (4th Cir. 1963).

6
Foster contends that the St. John dock is distinguishable since it was built in a rock formation, while his invention was designed for water-bearing soil.  Although Foster emphasized before the Patent Examiner that his dock was intended for use in water-bearing soil, the distinction that he now claims was not embodied in the patent.  Claim 1 describes a dock 'situated on bearing soil or the like.'  To deal with a broad range of seepage rates, he claimed conduits to drain underfloor water 'at a rate which is at least equal to that at which such water naturally accumulates under said floor . . ..'3 Rather than being limited to docks constructed in water-bearing soil, Foster's patent encompassed those such as St. John's that are built on other foundations, regardless of permeability.

7
Even if Foster's patent were limited to water-bearing soil, we agree with the district court that it would not significantly differ from the St. John dock.  The engineers of the St. John dock expected water seepage through rock fissures and installed drains under the floor and pumps to relieve hydrostatic pressure.  The rate of seepage, not its absence, is the principal difference between the St. John dock and Foster's.  The eventual buildup of pressure would have the same results in both docks if water were not removed from beneath the floor.  The decision as to which type of dock to build is largely economic.  It is influenced by the comparative costs of pouring a thick floor for a gravity dock or pumping water continuously during the life of a fully relieved dock.

8
Accepting Foster's contention would mean that a person constructing a dock identical to Foster's on a rock base would be able to defend against an infringement suit on the ground that the patent was anticipated by the St. John dock.  In contrast, a person constructing a similar dock in water-bearing soil would be liable for infringing the Foster patent.  But the law does not compel acceptance of this anomaly.  The subsurface, whether rock or soil, is not an element of Foster's patented dock.  It is the substance on which the dock is situated.  An invention disclosed by prior art does not become patentable simply because it is used in its customary way on a different object, 'even if the new result had not before been contemplated.'  Ansonia Brass & Copper Co. v. Electrical Supply Co., 144 U.S. 11, 18, 12 S.Ct. 601, 604, 36 L.Ed. 327 (1892).  Grinnell Corp. v. Virginia Electric & Power Co., 401 F.2d 451 (4th Cir. 1968); Fluor Corp. v. Gulf Interstate Gas Co., 259 F.2d 405, 408 (5th Cir. 1958).  Cf. General Electric Co. v. Jewel Incandescent Lamp Co., 326 U.S. 242, 66 S.Ct. 81, 90 L.Ed. 43 (1945).  We conclude, therefore, that the district court properly ruled that the claims in suit are invalid.

9
The district court also held that even if the Foster patent were valid, the Newport News dock would not infringe it.  Foster was denied a patent for his dock six times between 1956 and 1962.  He was granted the patent in 1964 only after he amended his application to include venting to the atmosphere through the dock floor.  Although Foster's earlier applications included the use of atmospheric pressure, only the addition of the floor perforations distinguished it from the Endicott dock, Patent No. 470,750, March 15, 1892, which also provided for subfloor drainage.

10
Foster now claims that the floor perforations are not essential to his patent.  But '(a) patentee, having deliberately taken a position in the Patent Office proceedings to induce the grant of the patent to him, is not thereafter permitted to repudiate that position.'  Berry Brothers Corp. v. Sigmon, 317 F.2d 700, 706 (4th Cir. 1963).  Since Foster relied on the floor vents to obtain his patent, he is now estopped from denying their importance.

11
The Newport News dock does not utilize floor vents to allow the air to reach the underside of the floor.  Instead, atmospheric pressure is exerted through loose sand and gravel surrounding the dock walls to induce the subfloor water to flow by gravity to the sumps.  Foster contends that this is equivalent to venting through his floor openings.  His argument, however, overlooks an exception to the application of the doctrine of equivalents.  A patentee cannot rely on the doctrine to recapture the broad claims that he has surrendered by amendments adopted to induce the grant of a patent.  See Exhibit Supply Co. v. Ace Patents Corp., 315 U.S. 126, 136, 62 S.Ct. 513, 86 L.Ed. 736 (1942).  Therefore, the district court correctly found no infringement by the Newport News dock.

12
Our disposition of Foster's appeal makes it unnecessary for us to consider the issues raised by Newport News in its cross appeal other than to say we find no error in the district court's refusal to award counsel fees.

13
AFFIRMED.

1
 Claim 1 describes Foster's invention as follows:
'In a graving dock having a generally continuous, bottom-enclosing floor situated on bearing soil or the like at a depth which is below the natural water level in such soil, the improvement comprising means for reducing excess natural hydrostatic pressure as would otherwise be directed upwardly against the underside of said floor, said means comprising drainage means for removing accumulating water from below said floor including pump means, a seepage bed of material disposed underneath substantially the entire area of said floor, conduit means including portions substantially adjacent the underside of said floor and communicating with said seepage bed to admit entry of said accumulating water from the latter, at least said conduit portions being disposed in direction which is generally parallel to the general plane of said floor and said conduit means being adapted to conduct said accumulating water to said pump means at a rate which is at least equal to that at which such water naturally accumulates under said floor, and means defining open vent passages between said seepage bed and the atmosphere, said drainage means being disposed to remove said accumulating water at a flow level whereby such natural hydrostatic pressure excess is maintained at negligible value at the level of the underside of said floor.'  (E. 48)
Dependent claims 4, 5, and 7 describe variations in the location, type, and configuration of the drainage system.  Independent claim 11 defines a method for reducing hydrostatic pressure against the floor by drains 'while maintaining vent communication between the underside of said floor and the atmosphere.'

2
 'A minimum floor thickness of three feet was established, but owing to the fact that the rock was practically standing on edge and on account of the pocketing effect of blasting vertical drill holes in rock so situated, it was decided to keep all the floor from direct contact with the underlying solid rock, by pouring this floor concrete on a layer of loose rock; this open layer of loose rock to be fully drained with longitudinal and cross tile drains, laid before pouring the floor concrete and covered first with a mount of loose stone and then a thin protective coat of concrete.  By adopting this method of construction, it was felt that complete and adequate under-drainage would result, while if an effort were made to clean the foundation, all to the solid rock, numerous pockets originating from drill holes would be left where no direct bond with the solid rock would be obtained, but completely surrounding such pockets and entirely sealing them, there would be the bond between solid rock and floor slab concrete, and as these pockets would not in any way connect with the under-drain system, a condition of accumulating hydrostatic pressure would be created under these parts of the floor slab, with its resultant ultimate rupture or displacement.'  (E. 31--32)
VI The Engineering Journal 423, 428--29 (Montreal, Canada, 1923).

3
 See note 1 supra


20 F.3d 1171
Bourgeoisv.U.S.*
NO. 93-03504
United States Court of Appeals,Fifth Circuit.
Apr 08, 1994

1
Appeal From:  E.D.La.

2
REVERSED.

*
 Fed.R.App.P. 34(a);  5th Cir.R. 34.2


     Case: 15-41707      Document: 00513639730         Page: 1    Date Filed: 08/16/2016

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals

                                    No. 15-41707
                                                                                Fifth Circuit

                                                                                FILED
                                 Conference Calendar                       August 16, 2016
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk

                                                 Plaintiff-Appellee

v.

JESUS ROBERTO RAMIREZ, JR.,

                                                 Defendant-Appellant

                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:10-CR-192-1

Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM: *
       The Federal Public Defender appointed to represent Jesus Roberto
Ramirez, Jr., has moved for leave to withdraw and has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), and United States
v. Flores, 632 F.3d 229 (5th Cir. 2011). Ramirez has filed a response. We have
reviewed counsel’s brief and the relevant portions of the record reflected
therein, as well as Ramirez’s response. We concur with counsel’s assessment

       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 15-41707      Document: 00513639730   Page: 2   Date Filed: 08/16/2016

                                 No. 15-41707

that the appeal presents no nonfrivolous issue for appellate review.
Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is
excused from further responsibilities herein, and the APPEAL IS DISMISSED.
See 5TH CIR. R. 42.2.

                                       2


671 F.2d 497
Ashbyv.F. B. I.
81-1666
UNITED STATES COURT OF APPEALS Fourth Circuit
9/16/81

1
E.D.Va.

AFFIRMED


                              RECOMMENDED FOR FULL-TEXT PUBLICATION
                                  Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                           File Name: 17a0251p.06

                      UNITED STATES COURT OF APPEALS
                                       FOR THE SIXTH CIRCUIT

 HENRY KALAMA; HERMAN COLLADO; ROY M.                          ┐
 JACKSON; FERMIN AGUILAR; JOHN J. LYNAM; JUNEST                │
 P. PONSON; HARRY G. SHANNON; BILLIE JENKINS; LUIS             │
 CACERES; JEREMIAH TODD,                                       │
                              Plaintiffs-Appellants,           │
                                                                >        No. 16-3408
                                                               │
            v.                                                 │
                                                               │
                                                               │
 MATSON NAVIGATION COMPANY, INC., et al.,                      │
                          Defendants-Appellees.                │
                                                               ┘

    Appeal from the United States District Court for the Northern District of Ohio - Asbestos.
          No. 1:10-cv-0001—Dan Aaron Polster and David A. Katz, District Judges.

                                          Argued: July 26, 2017

                               Decided and Filed: September 13, 2017*

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

                                           _________________

                                                COUNSEL

ARGUED: Louis M. Bograd, MOTLEY RICE LLC, Washington, D.C., for Appellants. Harold
W. Henderson, THOMPSON HINE, Cleveland, Ohio, for Appellees. ON BRIEF: Louis M.
Bograd, MOTLEY RICE LLC, Washington, D.C., Timothy A. Swafford, Alan Kellman, John
Cardello, THE JAQUES ADMIRALTY LAW FIRM, PC, Detroit, Michigan, for Appellants.
Harold W. Henderson, THOMPSON HINE, Cleveland, Ohio, for Appellees.

        ROGERS, J., delivered the opinion of the court in which COOK and STRANCH, JJ.,
joined. STRANCH, J. (pg. 16), delivered a separate concurring opinion.

        *
         This decision was originally filed as an unpublished opinion on September 13, 2017. The court has now
designated the opinion for full-text publication.
 No. 16-3408               Kalama, et al. v. Matson Navigation Co., et al.                                    Page 2

                                              _________________

                                                     OPINION
                                              _________________

         ROGERS, Circuit Judge. This case arose in the late 1980s, when merchant marine
plaintiffs began filing asbestos-liability suits against ship-owner and manufacturER defendants in
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, ten 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 ten 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.

         1
            Ten 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 ten, 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.
 No. 16-3408           Kalama, et al. v. Matson Navigation Co., et al.                     Page 3

       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
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
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
 No. 16-3408          Kalama, et al. v. Matson Navigation Co., et al.                      Page 4

       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.

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
 No. 16-3408            Kalama, et al. v. Matson Navigation Co., et al.                   Page 5

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
they were reassigned to Judge Robreno and reactivated. See id.

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

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
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 Prods. Liab. Litig. (No. VI) (Jacobs Opinion), MDL No. 875, 2014 WL
 No. 16-3408           Kalama, et al. v. Matson Navigation Co., et al.                    Page 7

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
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
 No. 16-3408           Kalama, et al. v. Matson Navigation Co., et al.                     Page 8

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
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
 No. 16-3408                Kalama, et al. v. Matson Navigation Co., et al.                                    Page 9

§ 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
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
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

         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).
 No. 16-3408            Kalama, et al. v. Matson Navigation Co., et al.                  Page 10

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
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
 No. 16-3408           Kalama, et al. v. Matson Navigation Co., et al.                  Page 11

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
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
defendants 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,
 No. 16-3408               Kalama, et al. v. Matson Navigation Co., et al.                                Page 12

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
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

        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 ten plaintiff–appellants’ cases.
 No. 16-3408           Kalama, et al. v. Matson Navigation Co., et al.                    Page 13

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
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
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
 No. 16-3408           Kalama, et al. v. Matson Navigation Co., et al.                      Page 14

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 does 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.

       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.
 No. 16-3408              Kalama, et al. v. Matson Navigation Co., et al.                              Page 15

        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’ cases 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’
claims against those defendants were not “terminated,” and the JPML was still required to
remand claims against 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.
 No. 16-3408           Kalama, et al. v. Matson Navigation Co., et al.                  Page 16

                                      _________________

                                       CONCURRENCE
                                      _________________

       JANE B. STRANCH, Circuit Judge, concurring. I write separately to note that though
this case is part of a very large MDL group of cases, its result hinges on the unique
circumstances surrounding the claims of ten individual plaintiffs against nineteen specific
defendants. I concur because our result is based on the particulars of these cases and because the
opinion accords with the understanding—and actual practice in this MDL—that § 1407 permits a
transferee court to remand a case to the transferor court with a recommendation to send the case
to an appropriate venue. See, e.g., Musselman v. Amphenol Corp., No. 10-cv-69486, 2011 WL
6415165, at *1 (E.D. Pa. Nov. 2, 2011) (remanding a MDL No. 875 case to the Delaware
transferor court with a suggestion to transfer the case to Arkansas). Although the MDL court
declined to elect that path for these ten plaintiff-appellants, other plaintiffs, including those
participating in MDL No. 875, may still request that relief.

       Also, although these ten plaintiff-appellants were unable to present specific evidence that
the nineteen defendant-appellees waived personal jurisdiction in their individual cases, today’s
opinion confirms that other plaintiffs may prove waiver. See supra p. 14, note 3 (discussing In
re: Asbestos Prods. Liab. Litig., 661 F. App’x 173 (3d Cir. 2016)). The opinion notes that the
Third Circuit “correctly” reversed dismissal because the January 1991 statements made by
counsel for two of the defendant-appellees confirmed that they had consented to proceeding in
the N.D. of Ohio for the purposes of a cluster of twenty cases. Where such evidence of waiver
exists, dismissal remains inappropriate.


     Case: 11-10672     Document: 00511823926         Page: 1     Date Filed: 04/17/2012

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           April 17, 2012
                                     No. 11-10672
                                  Conference Calendar                      Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

NICHOLAS DIAZ,

                                                  Defendant-Appellant

                   Appeals from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:11-CR-135-1

Before JONES, Chief Judge, and JOLLY and SMITH, Circuit Judges.
PER CURIAM:*
        The Federal Public Defender appointed to represent Nicholas Diaz has
moved for leave to withdraw and has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th
Cir. 2011). Diaz has not filed a response. We have reviewed counsel’s brief and
the relevant portions of the record reflected therein. We concur with counsel’s
assessment that the appeal presents no nonfrivolous issue for appellate review.
Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-10672   Document: 00511823926   Page: 2   Date Filed: 04/17/2012

                               No. 11-10672

excused from further responsibilities herein, and the APPEAL IS DISMISSED.
See 5TH CIR. R. 42.2.

                                     2


                  OFFICE                         OF        THE            ATTORNEY                    GENERAL                      OF TEXAS

                                                                                AUSTIN

        Bonorrblo                  Bet             Ford,               Adminl8tr~tor
                                                                                I
        hur       Llqaor Oontrul                                       Boar6
        Au8tin,          Texa8
        Boar 81x-r

        quertlon             b8                  bQen        reoolt

                          ‘ItI th8 right 6iV8ll t0 8 8UbdiVi81OlI 18
                  iPQ1184 the mr         by ldoptlw     prohlbltfon  to
                  pat l rule      in iox- wh8roby th8 aa10 0r Uquor
                  8hdl      b0 M-58 Ud&ti      ifs lTOrY iOOt Or it8
                  torrltorf,     ltta mm   thi8 it r08ulO8 that     no
                  part or that territory       em meke the 8al0 tat-
                  rti in sU0h PVtpt, 8inO0 that WOtIad b4 hOOtt-

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Honorable Bert lord, Tage 2

           8iStOlltwith the pawor of the larger so to em-
           tabllsh the law throughout its extent. And thin
           la not allowed to affeot the right of an inoluded
           8Ubdivi8iOn to a&opt thr law for iteelf when it
           has been rejeoted by the lnoludlng one.*
          The oourta have repeatedly held that thars cannot
be a wet preolnot within a dry oounty, thererore, it w0ula
naturally rollow that there oou1.dnot be a wet area within
a dry preolnot. 30 Seotion ZO, Article 16, or the Stata
COIi8titUtiOn,Artlole 666-83 Or the Penal Code, and the case8
or Coker, County Judge v. Kmloik, 87 5. %. (2d) 1076,
Walling v. King, county Judge, 07 s. IF. (2d) 1074, Aaron v.
Stat..,eo s. w. 267, and Ex Part0 iaia8,   46 3. w. 1X7.

          In view or the roregola; authorities you are re-
apaotfully advised that it i8 the opinion Or this Dep&rtmUt
that the annexed wet territory would take the status of the
aunexlng dry territory.
                Trusting that the foregoing fully answers           your
inquiry,      we   remain

                                         Yours   very       tiuly

                                      ATTORNEY   GENl?RAL      OF    -TDAS

                                       By        Ardbll       William8
                                                            A88i8tant


287 So.2d 151 (1973)
Hazel FITZGERALD and Reserve Insurance Company, Appellants,
v.
Clarence ADDISON and Barbara Addison, Husband and Wife, Appellees.
No. 73-224.
District Court of Appeal of Florida, Second District.
December 7, 1973.
W. Robert Mann of Mann, Fay & Price, Chartered, Bradenton, for appellants.
Matthews & Mulock, Bradenton, for appellant Hazel Fitzgerald.
Alton G. Pitts of Pitts, Eubanks, Ross & Rumberger, Orlando, for appellant Reserve Ins. Co.
*152 Gerald C. Surfus of Nelson, Stinnett, Surfus, Payne, Hesse & Cyril, Sarasota, for appellees.
GRIMES, Judge.
This case is presently before the court on a motion to quash an order relating to supersedeas.
Mr. and Mrs. Addison sued Hazel Fitzgerald for injuries received by Mrs. Addison in a motor vehicle accident. Reserve Insurance Company (Reserve), the liability insurance carrier for Mrs. Fitzgerald, was joined as a defendant. The jury returned a verdict in favor of the Addisons in the gross amount of $35,000.00. Since the maximum liability coverage under the Reserve policy was $10,000.00, final judgment was entered for $35,000.00, with the proviso that Reserve could satisfy all of its liability thereunder by the payment of $10,000.00 plus interest and costs.
Judge Silvertooth entered a further order that Reserve could supersede its obligation under the final judgment pending appeal by posting a supersedeas bond in the amount of $11,324.89 and that Mrs. Fitzgerald could supersede her portion of the judgment by posting bond for $26,250.00. A notice of appeal was filed by Reserve and Fitzgerald. Reserve posted its supersedeas bond in the prescribed amount, but Mrs. Fitzgerald petitioned the lower court to require Reserve to post a supersedeas bond in her behalf pending the appeal. In her petition, Mrs. Fitzgerald alleged that Reserve had acted in bad faith in the defense of her case by refusing to settle within the policy limits, by failing to communicate offers of settlement to her and by failing to advise her of the possibility of an excess judgment and the need to secure separate counsel. Judge Roy E. Dean heard the petition and entered an order directing that Reserve should post a supersedeas bond for Fitzgerald in an amount sufficient to cover the judgment obtained by the Addisons against Mrs. Fitzgerald. Reserve's motion to quash the order requiring it to post a supersedeas bond in excess of its policy limits brings the matter to us at this time.
The applicable portion of the insurance policy reads as follows:
"II. Defense, Settlement, Supplementary Payments.
With respect to such insurance as is afforded by this policy for bodily injury liability and for property damage liability the Company shall:
* * * * * *
(b)(1) pay all premiums on bonds to release attachments for an amount not in excess of the applicable limit of liability of this policy, all premiums on appeal bonds required in any such defended suit, the cost of bail bonds required of the Insured in the event of accident or traffic law violation during the policy period, not to exceed $100 per bail bond, but without any obligation to apply for or furnish any such bonds;
* * * * * *
Even when measured by rules of strict construction, this language could not be construed to mean that Reserve had an obligation pending appeal to furnish a supersedeas bond in excess of its limits.
The right to appeal is not dependent upon the obtaining of supersedeas. Horn v. Horn, Fla. 1954, 73 So.2d 905. A defendant can appeal a money judgment without posting a supersedeas bond, but he does so at the risk of having to pay the judgment before the appeal has been concluded. Absent supersedeas, a successful plaintiff can garnish a defendant's insurer even though the insurer was not originally a party to the suit. Grange Mutual Casualty Company v. Stroud, Fla.App. 1965, 173 So.2d 171. If the judgment is reversed, the judgment debtor must seek restitution for his prior payment. Hazen v. Smith, 1931, 101 Fla. 767, 135 So. 813.
*153 The purpose of an order relating to supersedeas is simply to specify an amount in which a bond may be posted which will have the effect of superseding the judgment pending the outcome of the appeal. The lower court cannot require a supersedeas bond to be posted. It simply prescribes the amount, terms and conditions of the bond which will make effective the supersedeas. Rule 5.5, Florida Appellate Rules, 32 F.S.A.
Here, the trial court erroneously attempted to require the giving of a supersedeas bond by Reserve in an amount which far exceeded its liability limits.[1] Assuming Reserve were to comply with the order and the appeal was ultimately lost, the Addisons would have the right to collect the total amount of the judgment from the bonding company which would have the ultimate effect of visiting the entire liability upon Reserve.
Inherent in the resolution of this matter is the question of whether a liability insurer should be permitted to supersede a judgment entered against it pending appeal without at the same time superseding the judgment against its insured, even though the amount of the judgment against its insured exceeds its policy limits.
Prior to the time that liability insurers were proper parties to the suit, the practical effect of a judgment against an insured in excess of the limits was to place the carrier in the dilemma of having either to pay the judgment to the extent of the limits and forego its appeal or to supersede the total judgment and run the risk of losing it all in the event of an unsuccessful appeal. There was no way for a judgment to be partially superseded.[2]
With the advent of Shingleton v. Bussey, Fla. 1969, 223 So.2d 713, and subsequent related cases, "all of the cards are now on the table," and liability carriers are joined as interested party defendants. Where a judgment is entered in excess of the limits, appropriate language is included to provide that the judgment against the carrier shall not exceed the limits. In keeping with the spirit of Bussey, it appears that an insurance carrier should now be permitted to supersede the judgment against itself pending appeal without having to supersede the balance of the judgment against its insured.
Having made such a statement does not necessarily solve all the problems. To hold that an excess judgment against an insured should be fully superseded by the posting of a supersedeas bond in a lesser amount would be patently unfair. We believe the solution to be that the supersedeas bond filed by the carrier should supersede only that portion of the judgment against the insured which equals the amount of the judgment against the carrier. The insured may prevent the enforcement of the balance of the judgment by the posting of a supersedeas bond in an amount prescribed by the court.
This does not resolve a situation where an insured does not have the financial standing to obtain a bond. Under those circumstances, the plaintiff would be entitled to try to collect the excess amount of the judgment from the insured, but this would not place the insured at any more of a disadvantage than he would have been had no appeal been taken. Should the plaintiff and the insured reach a settlement whereby the judgment is satisfied against the insured, the payment to the plaintiff would not be credited to the judgment against the carrier. In this event, the plaintiff may continue to seek to collect that judgment, the carrier may continue its *154 appeal, and the insured will not have breached its insurance contract.
Our holding, at first blush, might appear contrary to that of the First District Court of Appeal in Reserve Insurance Company v. McPeak, Fla.App. 1966, 181 So.2d 662, but we do not deem the cases to be in conflict. At the outset, it should be noted that McPeak was decided before Bussey. The plaintiff obtained a joint judgment of $15,000.00 against McPeak and another defendant. McPeak had liability insurance limits of $10,000.00. The insurance carrier filed an appeal on behalf of McPeak. No supersedeas bond was posted. The other defendant offered to pay half the judgment if McPeak would pay the other half. In order to stay the sale of her property, McPeak paid her half of the judgment. Thereafter, the judgment holder obtained the dismissal of the appeal because the judgment had been paid.
McPeak sued the insurance carrier and recovered back the $7,876.10 she had paid to obtain a satisfaction of the judgment. The insurance company contended that McPeak had breached her contract of insurance by paying the judgment without the consent of the insurer and by not posting a supersedeas bond for her part of the judgment over the policy limits. The trial court entered a judgment for McPeak which was affirmed.
The holding in that case was predicated upon a finding of bad faith on the part of the insurance company for refusing to settle for an amount within its limits after the judgment had been entered. Those circumstances are not present in the instant case. To the contrary, the record reflects that Reserve has offered to settle the judgment against its insured by the payment of its limits.
It should be noted that we are not deciding whether or not an insurer ever has a duty to take an appeal or a duty to furnish a supersedeas bond for the insured pending appeal where the judgment does not exceed the limits. Moreover, we are not passing on the question of whether in this instance Reserve may have been guilty of bad faith to its insured for failure to settle within the limits prior to judgment or for any of the other reasons alleged by Mrs. Fitzgerald. These contentions would have to be resolved in a trial between Mrs. Fitzgerald and Reserve, and this has not occurred. Should the original judgment be affirmed and Mrs. Addison be successful in her contentions, Mrs. Fitzgerald would then be entitled to a judgment against Reserve which would make her completely whole.
The order requiring Reserve to post the supersedeas bond in an amount sufficient to supersede the entire judgment against Mrs. Fitzgerald is hereby reversed. This decision will have the effect of reinstating Judge Silvertooth's order of supersedeas which was consistent with the reasoning set forth herein.
MANN, C.J., and McNULTY, J., concur.
NOTES
[1]  Colon v. Marzec, 1969, 116 Ill. App.2d 278, 253 N.E.2d 544.
[2]  See, e.g., Rudolph v. Cassidy, 1956, 225 Ark. 951, 286 S.W.2d 489. In refusing to permit a partial supersedeas, the Arkansas Supreme Court observed:

"... If the insurance carrier were a party to this suit and seeking to make a bond only for the amount for which it could be held liable under the terms of its policy there might be good grounds for permitting it to do so, but the insurance company is not a party."


970 F.2d 896
Scavonev.Sullivan
NO. 92-6067
United States Court of Appeals,Second Circuit.
June 23, 1992
Appeal From:  E.D.N.Y., 780 F.Supp. 976

1
AFFIRMED.