please before turning to the legal and analytical failings of the district court i'd like to take a moment to focus on the ramifications of the district court's decisions and why there are those ramifications warrant this panel considering the appeal from decision at its most basic the western district of of michigan has put a brand j out of the american courts while there is a very high likelihood that the brazilian courts will not exercise jurisdiction over this dispute and we know that the brazilian courts will not exercise jurisdiction over this dispute of this dispute because in the related cases where brazil and there is an open question whether or not the brazilian courts will even consider the type of liability that a brand is asserting which is based on damages flowing from  fraudulent inducement that relied on third parties this information is not in the record in this case because the movement did not satisfy its burden to make a showing to the district court that brazil was unavailable or adequate for instead what it did strike or cited three cases to the to the district court in its brief moving brief where brazil was demonstrated to be  under the particular facts of those cases and left it at that then went to bronte pointed out that this is nowhere came nowhere near meeting the requirements of a four non convened dismissal under the supreme court case law or th circuit court case law or any other circuit court case law they simply dashed off a one line consent to jurisdiction in brazil and now they take in their a briefing the absolutely sixteen in that case the northern district of illinois i believe dismissed a case on for nine convenes under very similar circumstances so what we have here the movement came into court simply said that india is an available forum cited to three or four cases and the district court granted the motion this seven circuit reversed and reversed in a pretty detailed opinion that even though it's not binding precedent that this is a very persuasive president and that is the result that this court should find in this instance reversing the district court of your argument the second component of the  to you on first step which is get to determine the degree of difference that the plaintiffs form choice that's that's one of the arguments that we make that strange it's not the chief argument the chief argument we make  the chief argument that was intended to be made and i apologize if it didn't come across in the briefing is that streicher had a burden to demonstrate that brazil was available and adequate they failed to do either of those and without demonstrating in the record there some record information that would suggest that there's not a challenge to adequate that your real challenge is to  well your honor judge darker made a statement in the decision that we did not challenge the adequacy of the brazilian courts that's not correct we were put in a position where we were we contend that because stryker failed completely to carry its burden we were put in a position where we even had to reach the issue to have even have to make that showing in the in the other instances in the the state court in texas action and the district court in delaware action both of which are ongoing when the movement submitted expert testimony as to the availability and adequa of brazil as a form we put in expert testimony that that contradicts that we didn't even get to that question we chose to respond to their argument based on the fact that they completely failed to to meet their burden which they did  if they had actually done something affirmative rather than just mentioning it in their reply brief about consenting to jurisdiction in brazil then what who's burden would it have been to direct this court to the to the second case that i was working my way to before which is a good listing in verses peter five ninety one f third seven twenty four that's the fourth circuit case from two thousand and ten in that instance there was a dispute between private security contractors in iraq and the defendant consented to jurisdiction in iraq and submitted an expert affidavit that that spoke to whether the iraqi courts were adequate to hear the particular dispute which i think there was a formal consent issued by the company much like you had in the heffernan case which was this court's last real writing on for nine convenes the fourth circuit found that even though you had consent and you had expert formal consent an expert testimony the expert testimony wasn't sufficient enough to demonstrate that iraq was an available form and that had to do with with questions about whether or not iraq could exercise jurisdiction based on the provisional government that was in place that needs to be done here it wasn't done here and what happened because it wasn't done here is the district court inverted the burden in placed it on a project two to two was spawn two or a motion that doesn't meet the requirements of the motion with evidence pointing out why it shouldn't have to go to brazil and they did it incorrectly why do what is your best authority for saying that if the case w like could not bring another motion and actually people it with the right type of consent and for my action on it my best authority is rule twelve your honor rule twelve in that they're not allowed to make another another venue motion after they've already made one that they're not allowed to make a mid it all argument but they made this argument the question is whether they supported it adequately i'm not sure i see that in  your candor i don't is an admitted argument the way that they the way that they've made the argument i would stand and that they they did in fact omit it it was a throwaway it wasn't made in any meaningful or or serious way it was tossed off in the district court i want to make sure that i'm factually correct here in your brief and i think what you said in your argument was that this consent think we all agree when the law is really the law is kind of pretty pretty pretty well established here the issue in dostana she had a british citizen who in the post war provisional directly frankly we didn't think it was an issue but in our reply brief we made it very clear and then that in a reply formally consent to jurisdiction in another court on behalf in this case i'm struggling with that because all of the case law looks to formal consent by an authorized board or officer of the corporation i'm to  me the reply is not the place to write that but i'm also concerned with the fact that simply a statement of thought and the question becomes whether the corporate entity has actually formally subjected itself and is willing to do so to another court right and i as in our best case to say that your that your line in the reply memorandum is sufficient to and strike or to granting consent to jurisdiction in a brazilian court i would say in terms of a citation your honor i have to defer i don't have it right here but i would say remand that you pay the closing parties expenses should you redo the motion i don't know what the basis of that authority would be your honor nor do i think it would be appropriate in this case wouldn't bother you  we don't know that we're going to be able to bring this case down to brazil where the dismissal in the western district was without prejudice so i have a case now to presume you're under the applicable form non convenient test is that you availability of two forms that's why it's your burden to establish that there is in fact another form of vital if you are going to time dismissal in before and i agree it is our burden no question about it but supportive of your case but in all of those cases there was expert evidence that this forum was a valuable and that it was adequate to to be a formula in which this case could be  resolved but not the norm of there in your case when none of those cases judge grants require an expert affidavit none of those cases require that and in this in this situation i'm struggling with why  because the court only in those cases only my own that individuals those companies had satisfied their burden on the basis that they had provided expert testimony  availability so it begs the question whether they say whether they had to say you had to have expert testimony because in all those cases they did and the response from the court was you satisfied your burden can you show me a case that says you can satisfy your bar with a simple statement in argument or in briefing that says i consent to the jurisdiction yes translated said several cases convenience to let you form selection calls in an agreement or or an entity whose principal price of business is in brazil we go you are not know what i have is a client who has agreed to subject will it under what circumstances do we say that the statement in brief is that satisfies the evidence or requirement your honor as an officer corps and as an agent of my of the motion practice perhaps but i mean it's really troubling to me that we're going to set some kind of a precedent that says well we said so in the briefs and that's all it takes when there are actually requirements of well under your american ethical obligation right the question is what is binding on a brazilian court and i am really struggling with the idea that you can say something not in your first brief so it can be responded to but in a reply brief that does not meet what i see in all of the of the cases in including the six circuit cases from  lhari even the ones that you have sided there has been something in they are that is evidence of meeting the requirement of adequacy and availability i think presume that that court word the parties to present themselves would exercise its jurisdiction it's a different issue you're talking about availability which i'd like to talk about as well but adequacy i think is not an issue at all because of the choice of law  possibility of maybe it's time very brazil or michigan has a borrowing statute and issues borrowing statute says if you're not a state fine if you come in the michigan and your cause of action is barred in your jurisdiction you don't get our longer one is because we consented that satisfies our bird there are probably a dozen cases where courts have sent cases off to brazil and there's never been anything where there's a situation where somebody said well brazil refused to exercise jurisdiction over this i acknowledge we have our burden but our consent satisfies arbor and then the burn shifts to them to say why that consent is not adequate and they didn't do that on their side of the case there is not a brazilian entity now there is the subsidiary that is a brazilian the tittie but not this defendant so they argue that there is and once you satisfied your burden in your reply brief what was there ever new to her but that it's a wonder is the issue in the district court first of all we didn't think that this would be an issue at all but if they want to raise it they could have sought a supplemental briefing and the other thing judge batchelder is this is a legal question it's not a factual question it's something that if there is some reason why they think that brazil won take your  station they can raise that legal issue on appeal they didn't do that as then they're sort of playing coy here and saying well we need to think maybe possibly brazil home exercise jurisdiction over this but that's never happened in any of the or more cases and i want to if i mention very quickly the talk about one quick case here which is in the mendez case out of new york which they cite in that case the southern if you knew your dismissed the case and go filing in brazil and trying to file a case in brazil that would get  you i'd like to address two points and then i'd like to talk about the the accusations that flew two or three times of games played i should like to address that first what strikers is asking for is an absolute departure from from form on convenes law as set forth by the supreme court this circuit every other circuit and if it it disregards the basis and purpose of  defies belief judge batchelder into a trance your your skepticism of that i think is borne out with a very simple example if i consent to jurisdiction in the form in the in the federal court with a diverse party for a dispute that's worth fifty thousand dollars what is that worth it is worth nothing because i don't meet the requirements of diversity there is nothing anywhere that demonstrates that the consent there we c sent to jurisdiction in brazil so the form is available satisfies any requirement that brazil would apply on parties for it to be before it and that is a critical failing and that's not even getting into their their failure to demonstrate that brazil is is adequate and and my learned opponent refers to over there all these instances where where the course of brazil have been held to be to be adequate and they do exist but there are other cases where the courts of brazil have been held to be in adequate for the particular dispute that's before and i brought the along the lines of this with another one it had to do with bribery that came out of the petrobras scandal and in that case the district for the district of columbia when presented with extensive expert analysis determined that the courts of brazil were not adequate to handle a case of that type because it didn't allow for the for the the cause of action to be before the court they are trying to allied t test and turn it into an or test and that shouldn't be permitted it or if the court is willing to do that it should realize that what exactly what would be doing in a decision that that held that the other thing that i would like to address is this this this idea that the choice of law has been decided the district court should not have even gotten to the issue of choice of law that is one of the public or private interest factors that are only mean it's an issue that wasn't before the court in any meaningful way and now to be told that oh the law of brazil is going to apply so there's no prejudice you know just go to brazil and bring your case and then come back it's a dismissal without prejudice well the expert testimony put forth in the other cases demonstrates that it will take about ten years to get a decision of brazil and that's and that's assuming that there are all of the  appellate options aren't aren't exercised so i'm a new york lawyer i'm not completely conversant with the statute of limitations in michigan but i willing to bet that ten years is well beyond the statute limitations for  what they did was they they conformed the american cause of action to the to the brazilian cause of action the american complaint was submitted as an attachment to the brazilian complaint so this idea that we're enga in gamesmanship and we're just here and we're just trying to create trouble we came in we sued stryker in their home district from what i understand the courthouse is twenty five miles away from their corporate headquarters i mean come on this is this is they didn't meet their burden the district court should have denied their motion and we asked that this court reverse i think now the case will be submitted there