there please the court my name is kyle farah represent mr petite in this case ultimately this appeal involves the violations of core principles of federalism that dictate that federal courts may not unduly interfere with legitimate activities of the state that notion goes back to the s text as it has a vested interest in protecting its injured citizens and give them access to the courts the u s supreme court held recently in smith versus bear the n t i junction act quote commands that those  tribal shall remain free from interference by federal courts supreme court is read it over and over and over again any doubts as to the propriety of a federal injunction against a court proceeding should be result in favor of permitting the state courts to proceed in an orderly fashion to finally that to finally determine the controversy and in fact is supreme court goes on to say because whether and how prior litigation is because of effect is usually the bailiwick of the nd court every benefit of the doubt goes says you have to look at the intent of the parties as to the dismissal but more fundamentally the court ignored the biting precedent from simtec the united states supreme court which is after larkin two years after lark simtec judge sc writing for a unanimous court said as a rule that decision a rule forty one dollars dismissal of claims in their entirety on the merits and with prejudice is necessary but not a sufficient condition for claim a different court suits in tech tells us is if you have the words on the merits or if you have the words with prejudice in your dismissal you're a forty one dismissal you can't file in that case and that court anymore but you can have to have more i mean if you look back since the entire injunction act was amended in the forty's and again in the fifty's there is not a single supreme court case that upholds a injunction on the really big h and exception to the anti injunction act it doesn't have to because it's such a narrow issue and you have to look at the underlying facts and if we look at the underlying facts in this case it's in tech just the still was all claims in their entirety on the merits and with prejudice mr petite his dismissal was significantly different it was the above captioned case be dismissed with prejudice and that makes a lot of sense because he had to pin down cases right to it so of course he's going to dismiss the above captioned case not the other the united states supreme court issuing a rule decision as to the language of a rule forty one dismissal so it the texas court couldn't come in and say no no that rule forty one dismissal means something different the supremacy clause wouldn't let him do that so  has defined exactly what with prejudice means in a rule forty one dismissal which this was a rule forty one dismissal you really don't need to get to the state court lost to determine the purpose of effect of that business you're i was going to focus on the intent of the part whatever which requires reversal whatever it held that that you couldn't decide the intent of the parties at fifty one in fifty two well i guess a little bit of back and i'm sure the court knows that but mr putin to strike a deal with three m in late two thousand and sixteen early two thousand and seventy where he said i'm going to give up the india benefits cochere and the potential orders that make a mother could be beneficial and i'm going to go it alone in texas and it's evidence by the e mail exchange in december of two thousand sixteen is that after she won three m e mails that mr peters counsel and says until you are able to confirm which case will proceed we're not going to take action in the state court case mr peters counsel e mails three milt three and right back and says we have concluded that my lawsuit will continue in texas district court on behalf of mr pitied mr beattie has other counsel the one that found the in d l lawsuit emo's again that exact same day and says we can discuss the form of that clearly the indication was they're going to proceed in texas and the best evidence that they were going to proceed in texas is they proceeded in texas for two and a half years or three him answer discovery served discovery the post mr tito for five  there is no doubt that the entity that dismissal was to allow mr peter to present his claims in texas and he dismissed as the dismissal says his case to the above caption case in the n b a will for ever that's what that step in this and in fact as we know there was the orderly conclusion of that defense at the texas state court it was fully briefed on several judgment there was an oral hearing literally hours before the injunction came down the federal court should have never stepped in and joined the state court from its orderly process that's what our tech united states supreme court says over and over and over again the real litigation exception has to be narrowed and more fundamentally as as the u s supreme court said in chick came to an atlantic coastline and essential prerequisite for applying the real litigation exception is that claims are issues which the federal injunction insulates from litigation in state proceedings to actually have been decided by the federal court hampshire with that with the with the u s supreme court said was let's let's really dig deep and see what issues were decided by the federal court and it said you had the choice the law between singapore maritime law and united states definitely decided that plane of cannot really to get that in texas state court but form that convenes was it because the for my convenience in texas state court versus federal form i could be as all is a little bit different so you can't enjoin that  and len humor me for a minute and help me understand what your view would be if we were to apply apply either minnesota or texas law on the issue of the claim preclusion for the the analysis you have to have a you have to write it down and when it doesn't happen with the th circuit said is that won't do you have to do the analysis of all four factors demonstrate three and had to prove that it would succeed on the merits that they would be likely to suffer irreparable harm balance of the equities which is sort of what the minnesota rule is and the public interest in the court just failed to do that and frankly three m failed to present evidence on those points  entered in thousands perhaps tens of thousands of federal cases every year the supreme court said it sent back ordering right miller that with prejudice which is the language we have here  which by its very nature is bringing in a number of individual cases from perhaps fifty states to one location is it the same the same federal interest that you're our conclusion was that if we filed a motion it rescued a cot of ocean texas state quirke summary judgment motion that we were at risk of losing other summary judgment arguments it wasn't clear to us and we d didn't believe that we could file the serial summary judgment motions so we held off but then what happened is this within a few months or just it just to give a little bit background if the court may be aware from the question seems to me that if federal common law is applied here the it very well may lead us to minnesota law and how do you get around the fact that the just the who or reveal where it is not conducted in justice last case that did not result review so the question under minnesota law under the state versus joseph case from the minnesota supreme court is really whether there was any procedural limitation that prevented clinging to it from prosecuting its claims claims haven't pointed to it there was no procedural limitations that prevented them from prosecuting their claims they simply stipulated inclusion of the word with prejudice is that sort of something that that minnesota state courts would consider and looking at the injustice there's no there's no indication  a extended stay in place and then we moved within a fairly rapid period of time for the injunction once it was resumed and the particular urgency with d which we then moved for the injunction was motivated by the  to something like the th circuit case thank you for its referred to which is stop as to our discovery orders as opposed to the entire case no your honor that's because of the merit based decision and the court they are still held that breastfeeding let me suggest this to you the texas perhaps treats consent judgments even with prejudice it looks to the underlying purpose whether it was to be a settlement in which case it does apply race to dakota or whether it was just to facilitate a dismissal in which case it does not then affect how we should look at this case difference there's no texas state cases that either side aside that would point to a different approach to this these are against it relations like these are entered into every day is one of the factors that you have to consider is the success on the merits our position is under texas to cut it doesn't apply because the texas supreme court said you have to have adequately deliberated and firm on the issue that clearly never happened  nothing was litigated in mr tito's case mr holton counsel discussed issues that happened in two thousand and eighteen and nineteen those didn't happen and mr petite is case if the court looks to the th circuit winkler versus eli lilly it makes that point perfectly there was a you know we we it is three m's burden to prove likely irreparable harm they haven't done that at all mr holmes talk a little bit about maybe these hundreds of plaintiffs would w that hasn't happened yet it's been years and years so that's not likely you have to show that the harm is certain great in a such in minutes that there is a clear and present need for equitable relief that simply wasn't done the fact that the texas state court may issue eight different protective order isn't reparable harm that happens all the time in litigation there are companies that get sued for their products in state and federal court often and there's different requirements for protective orders and discovery and there's going to be inconsistent rulings that that's just part of our federal system that does not entitle a federal court to come in and enjoy a state court from their orderly process of what they're doing and that's exactly what happened here i mean it is it just can't be lost that chick came to they all say let it play out in state court that's not the federal court's job and if i don't have any questions at this mr pitt as of this court reversed the injunction let him proceed in texas