morris got a plate plate of coalition go on here outing good morning your honor some friend savage i'm a lawyer in savannah and i represent julian rigby in this case when i graduated from law school was a long time ago now forty years twelve percent of the cases filed in federal courts went to jury trials now that figure i see in al a publication zimmerman trial lawyers is one in three hundred sixty we have lost our way on what jefferson said when he wrote  the constitution that all cases ought to go for jury trials in this case if you look at judge lisa gabi wood's hearing that she had on it she made a lot of good points but when she ruled we're out of court on every point in this case the facts in this case are very important we're dealing with state of georgia in the state of tennessee we're dealing with julian rigby as a farmer and we're dealing with him as a receiving station he spent about the last dime he had getting ready to plant tobacco in two thousand and nine assured by philip morris that they were going to stay in the georgia tobacco market they come in on him later and say well this is a guy by the name of who is there leaf procurement guy we are going to cut back here but you can make federal crop insurance claims and you get paid anyhow on this situation what happened joy and i'll stick with george and this point is they have their graders philip morris brings in graders they grade the tobacco we have affidavits in this case which judge lisa gobby would disallowed but i've done a lousy job inch in not pointing out to the court that gather you don't concede that without the affidavit you can't survive oh no no no i've done a lousy job point that out i kind of go from case case i mean it i'm a come a small town it's about a lawyer maybe not a big town i mean up trying is whether she abused her discretion in excluding the affidavits in you've already asked answered judge khans question if if if she didn't you're pretty much out of luck here right you can't prevail no excluding the affidavit easily i didn't explain myself well our joint rigby's testimony which was taken by philip morris his counsel talks about a guy named roger eggleston who was number two in command with philip morris and he says eggleston tells out so i think it's in is there is there anything else just a technical question about the record is there anything else thing else in the record besides mr rigby's deposition that you think merit surviving summary judgment the low the farmers don't move this tobacco it's very expensive to do it they've got to bring in a big trucks this big volume these are millions of pounds of tobacco so they take what they get they don't have to technically they can say they'll march forget it we're e says the same thing to wrigley that's what a mission against interest by philip morris up i don't understand how i got tossed out i get tossed out a lot i mean in some senses it's i mean it's just we have tried a civil case in three years we don't want you to go out i mean it's sad i mean are we servants of the society we sit in are we not in this case and there are many fact issues as  understand it your client's explanation for not having to previously disclose the names of the affianced with the exception of mr davis was that you didn't know about them right you were to try to represent a former i mean they can't get them things like that the affidavits mainly that she's concerned about are on the tennessee cases where after they kick him out of georgia they give him the midway station up in tennessee and he last two years up there in that nice to bag him all the time can you find these guys he had a fire in his warehouse i mean did the best i know how to do and i found them in the end and i mean it and i'm used to state court systems and that's doesn't mean that the federal courts are wrong but i mean i had to find these guys in tennessee and dig them out i mean i find it really interesting the philip morris who throws an affidavit from a guy named greene that they both feel is necessary that they don't listen twenty six a but i'm not going to do that to them it ought to be about fairness and about justice in these cases and i'm amazed that judge would throw me out on this stuff i was you used your predecessor anthony a lima but i'll get used to judge would i mean she's a fine person but forget it we're not going to offer anything and i took it fifteen miles down the road to the burley receiving station and the same guys bought it the same stuff and i'm out of court i mean i just don't know what we're doing i really don't but i join rigby's deposition keeps us in this case you cannot do things like low grade so that you buy it cheap and then you get your graders at the back this is a very dirty business or you ever get into it i mean that the grating in the stuff i won't aggressing to that that at the back of his own warehouse they're regrading it because they bought it cheap because they've got the farmers and they're going to sell it for much better grade r i'm so i try to answer honestly on this stuff but you can't keep throwing these cases out i don't think we have people saying they've miscreated my tobacco they regraded my own warehouse they made money of these things my tobacco is set up to tennessee they won't buy it and they buy fifty miles down the the road like that you know this is fraud it's fraud thought try to look at stuff that he wrote he wrote a lot of stuff that supposed we were stopped reading on and he wrote a letter to this guy alexander donald who i don't know is just a friend of his but he said by declaration of rights i mean to stipulate freedom of religion freedom of press and trial by juries in all cases i mean we have a very even if you talk about a brandeis type brief the philosophy of law we have a very antagonistic society maybe civil jury trials can get back in there and show people they've got rights to resolve their problems but we need to put cases back where i think they were supposed to be thank you for i'm going to waive my last two minutes but thank you for your please the court i'm greg allen from smith moore leatherwood and i'm here for the defendant police philip morris usa and outreach client services my partner can't cop it is here as well there are two issues before the court this morning on appeal first is did chief judge would abuse her discretion and excluding affidavits from five witnesses that were undisputably disclosed late and improperly long after the close of discovery and even a month after the summary judgment motion was filed and sacked did the district court err granting summary judgment in this case where the plaintiffs came forward with no evidence to support their allegations and i would submit that the district court should be affirmed in its entirety as the summary judgment order in the supplemental appendix at sixty six notes at summary judgment stage by plaintiff can't stand on its pleadings and conclusions in unsupported allegations instead the plaintiffs are required to come forward with competent evidence to show there were disputed issues of material fact but that's precisely what they failed to almost certain that not once in the rigby deposition did he mention roger eggleston that's not in the record but more importantly in support of the summary judgment summary judgment motion the defendant submitted a statement of undisputed material facts one hundred fifteen paragraphs and the plaintiff's intimidated virtually every one of those paragraphs the few that they didn't  were deemed admitted by a judge would because the plaintiffs had failed to effectively controvert those facts as established in the record and what the record shows is there were valid written contracts in place there was no fraud essentially i was in contradict their own allegations in that regard to the way well the facts do contradict their allegations the only allegation is mr rigby has a couple of lines in his deposition rigby incorporated for which plaintiff rigby is president in own signed three different grower contracts over the time period in dispute the first was a two thousand and nine grower contract in georgia grower contracts are important to philip morris and to farmers because they're signed along before the growing season and in each contract it's not the only way philip morris will buy it as you must have a written contract and that contract tells the farmer in january here's the prices philip morris is going to pay per store position and quality i'm talking specifically about the allegations that philip morris or their agents intentionally miscreated the tobacco and apologize your honor i'm trying to get t so the contracts also specify for each and every grower a maximum pound of tobacco that will be bought from philip morris from that form so using the two thousand and nine julian rigby incorporated contract as an example the contract was for one hundred ninety nine thousand pounds of tobacco mr rigby testified as president of julian read being that ninety nine point something percent of that tobacco was delivered that year he was paid approximately three hundred thousand dollars and when he did not like the great assigned to back it to the back of julian rigby incorporated took seventy one bales at year elsewhere and sold it for a different products how can that be for all the same happened in two thousand and nine in two thousand and ten in berkeley contracts for julian read being which are not even alleged to be violated in the complaint but they're instructive because in both of those instances julian delivered one hundred percent in two thousand and ten they actually delivered more they amended the contract to go above and beyond the contracted amount and mr rigby as president testified they were paid in full under those contracts how can he even say that the grading system was fraudulent when he was operating under the very system and selling the full amount of his contracts there's simply no evidence of fraud none at all and besides in georgia you cannot have a fraud claim based on alleged misrepresentations and i will back up a second i mean this fraud claim is is is very interesting it's the most morpheus of the claims because it was not pled contradicted by the express contract terms the plaintiffs at mit that there are no assurances of any grade to be assigned to tobacco in the contracts the plaintiffs that mitt that there is no guarantee that a particular quantity of tobacco will be received and purchased instead the record makes clear the contract says they're only paid for tobacco actually delivered and purchased and it doesn't matter what the grade was in terms of the receiving station they're paid per pound delivered period regardless of grade and just as an aside i mean i have to say this fraud case just makes no sense to me because you heard argument today they're saying that on the one hand the defendants intentionally downgraded tobacco to save money and then on the other drove fifteen miles up the road to a competitor's business and bought the same tobacco at a higher price and that's just that makes no sense and it's not a fraud claim i would say i want to turn your attention to the to the discovery issue  judge would in her order address three factors that pertain to whether or not the affidavit should be excluded the importance of the testimony the reason given for the failure to disclose and third as prejudice as to the first  and do you agree that those are the the proper things for her to consider probably yes roger's ok the district court acknowledged that this testimony was very important to the plaintiff's case it was what was going to enable it to survive summary judgment theoretically  but it seems to me that she misapplied that test when she said because it's important that argues in favor of exclusion it's the other way around isn't it that the more important the testimony the more hesitant the court should be to exclude i submit that that's not the case your honor because the rules of discovery rules twenty six and rule thirty seven are designed to protect the party on the other side it was their duty to disclose these witnesses to us so we would have an opportunity to explore the allegations this litigation went on for nearly four years do you have any authority that supports your position in that regard that the importance of the testimony argues in favor of exclusion i think  well let me start by saying first of course it's an abuse of discretion standard which is the eleventh circuit says the district court abuses discretion only if there's a misapplication of all or they base their findings on clearly said the fact that those cases were going to help the point of survive summary judgment are not a good enough reason they are important because it's the crux of their case but that's not enough for the fall case actually takes me to another question that i have the district court found that that mr rigby's riggs b s reason for not disclosing the witnesses was that that the defendant already knew their identity but in fact the reason was i think as i read the record that they didn't know their identity and that's what mr savage just said so didn't the district are also there in that regard he did give a reason you know your honor there was no error because one as i stated there are hundreds and hundreds and hundreds of growers that the defendants buy tobacco from across the southeast mr rigby was a well aware of hundreds of those growers himself because they actually deliver tobacco  his company receiving stations so the identity of those farmers is known to all the parties but no one had any idea that they're going to make allegations such as they did in these affidavits and that's because the business records of the parties show that the affidavits are incompetent on their facts i mean for example there's an affidavit from a never disclosed witness name mr mix that alleges in two thousand and eight his tobacco was so severely downgraded by philip morris he took it out swear well the business records of the party show that in two thousand and eight mr mixon had a two hundred but that's an argument about why the affidavits and even with the affidavits they wouldn't survive summary judgment i'm still talking about the discovery issue in the fall case that you mentioned and many other cases the court specifically say that the not disclosing party didn't give a reason for the nondisclosure and the only question i'm asking is isn't it true that the district court erred when she said that he didn't give a reason or that his reason was the defendant or you know the reason was i didn't know about the witnesses well i would submit that the district court considered the record before her and exercised her discretion as wow but in answer to your question no because if you consider this case has morphed over time there are documents submitted in discovery where the plaintiffs initially thought they were going to file a price fixing class action and all these formers were going to come out of the woodwork that never materialized and in fact judge would dismiss the price fixing case claims at the very early stages of the litigation then morphed into a breach of contract case but when the plaintiff on the record admitted that all the submitted after summary judgment in the eleventh circuit said that's not a reason even if you did not and i would also submit there's there are statements in the depositions i don't know if this is officially on the record and it may even be comments from counsel but there were statements in depositions of we have all these formers long before discovery clothes that are come going to come forward and say this stuff and they never did they were never disclosed and so we had no way to know that they were going to make these kinds of allegations and i would submit she did not or rule twenty six is not aspirational and rule thirty seven automatically provides an exclusion unless you can so substantial dust cation or harmlessness so and so your argument is essentially even though she made those few mistakes she still didn't abuse her discretion because at least in part because the prejudice here was so substantial yes you know i would in my argument she exercised her discretion as she went through each of those three factors and said that each weighs in favor of exclusion but absolutely she did not abuse her discretion here in summary judgment was proper on all counts  the plaintiff's deposition the plaintiff's response to requests for it missions and the other discovery make clear there is no basis for any of these claims as a matter of law and we would submit that the district court should be affirmed in its entirety thank you very much a fairly cisco judge lima had lived and fairly says good live he was sent to prison for the third time in his life in their cisco brother's case you can't have cases we're saying these contracts that they're entering into where they say you're going to great things fairly and we're going to support the farmers of south georgia in these cases they never meant to do those things we were moving to set aside these contracts were disregarding these contracts we couldn't give back the benefits that we got it got in these cases but you can't write a contract that knocks you out of a fraud claim and even judge wood was saying you got to look at the contract claims and then the fraud claims in these cases and they can't knock out my fraud claims with this idea that you can never have you can't do that to people of the one important thing is a five affidavits they dealt with all these guys they bought tobacco from and these are some aliens now out of hundreds of farmers who might think there was fraud they engaged in the fraud with the farmers or the farmers were the victim of they know about it disrupt their hands and claim you know we weren't we can't figure this out these are the guys they were doing it to regrading their tobacco in the back i don't know