to cure those deficiencies and then dismissing the entire case with precious now in my view it seems that the second issue is the first issue is sort of a sufficient condition for reversal but the second issue is is necessary i can we can debate whether the complaint was sufficient but when we get down to whether leave two men should be granted i don't think there's much room for debate and that's what i intended to focus on i'm happy to defend the complaint of the court wanted me to so the focus of my my argument is that it was an abuse of discretion to not grabby to amend the complaint given the deficiency that the court identified in evidence capital versus asked beyond which is cited in the breeze three these issues just dismissed he only close is that the word came was saying that that the hell of it said had two chances and that's not really accurate they had filed in a complaint in the original complaint state court some of that you look at the god get some of the defendants answer it or not is it affects our decision that there was a second amended complaint attached to it so the district court when he made that decision was able to look at the second proposal you know the second amendment complaint and does that give us or should we give more latitude to the to the district court's decision to deny in light of that because he's looking at the s basically said it was just too late and i think that if if the if judge housing or had sort of made an order that said you propose these amendments and you still haven't done it that would be a different case than saying i'm not going to look at it because it comes too late i already dismissed the complaint once i think off the top but i just go ahead well what i was going to say if you look at the sweep of what happened here you got the original it didn't state which products produced by phelps dodge or the other defendants contain just best as and it covered a forty year span without containing information about the type of products that phelps dodge or the other defendants  helbeck was exposed to them those were the defects that were identified in marsh it's not now you got the first of many complaints now that complaint doesn't belong in a form book as an exemplar of how to plead  case but if you are trying to measure it against the defects that right benefit in the march order i think it it answers those it's clearly a bonafide it's hemp to answer those questions the the june order granting the second motion to dismiss actually applies a different standard suddenly the june order is saying that the defects relate to based on the line or weaver case the way the plaintiffs have to allege causation not not a dismissal talks about the duration of exposure and these things which are not really pleading elements under any any rule that i'm from within a rule in federal court and not under state court as best as cases don't have so i don't think we sort of have a moving target here when whatever we again i'm not going to defense extensively the first of many complaints but i can't least say it was clearly an attempt to meet the defects the judge cause and identify and if the problem with it was that it wasn't specific enough then the response to that is then give me more details and if judge posner really believed that the under the line of weaver case these elements of causation suddenly had to be proven or at least identified in the complaint well then that was a new a new issue it wasn't in the first words not like the plaintiffs ignored that directive and there should have been a second amended complaint allowed and so when you look at the second many complaint that was filed in response to the order to show cause i think that complaint probably is not rule eight compliant i've seen cases this court saying that a seventy plus page complaint you knows is too long because it's not it's probably us but if they just record a saying i want these details i want these details i think that the plaintiffs in the second minute complaint made a good faith attempt to try to give them there's findings is essentially shows there's an abuse of discretion this that you can't throw the whole case out when if if the problem is a lack of specificity there wasn't a finding here that this is this product liability complaint was somehow inherently morning your honor james makes for a telly phelps dodge industries and i will go directly to the leave to amend issue seventy two questions from the court if it has them and well argument somewhat glosses over the court's citation to the baccarat case in california which in which the district court here pointed to two requirements one identifying and as best as containing product and t good cited in the first order and i believe the baccarat case is also cited in the second order along with the linear we her case which is counsel pointed out relates to trial issues but obviously things that need to be proven at trial have to be represented in some i take a look at that yes yes absolutely going why do you propose is insufficent i think there are a few problems with it it certainly is paragraphs for each defendant and then recites the substantial factor standard in addition it contains a description of the defendant's conduct that relates to all of the defendants in one aggregation with a laundry list of alternative things that they may have done something that we raised in our briefing on the motion to dismiss the first minute complaint that plaintiff's below did not respond to sorry that's not the citation that i want the the problem with that is that it fails to identify what phelps dodge as a defendant did or failed to do that is any different from any of the other defendants if you look at the second amended complaint paragraph nine which is essentially identical to the first amended complaint at paragraph nine with the second american plain paragraph fourteen versus the first ten thirteen and then the third example of that is as diverse as manufacturing wallboard breaks that sort of thing allegations saying that phelps dodge did or failed to do researching labeling packaging did all of these things especially because their alleged in a group as against the defendants we cited cases in our briefing in the court below against the first of many complaints on this issue plaintiffs chose not to address  good morning i would love to answer your question and i think that what we need to do when we're stepping back and looking at the question is decide what you need in a complaint in federal court and we're talking about is the  ball standard requires the federal federal courts require you to go beyond notice pleading you know you were familiar with that count yes your honor when you get to the point and moving on i'd also like to identify a couple of nights on the case between this and mission of our beliefs in the preparation for argument which i admit is my bad and i apologise to the court for that but i just like to bring the it's to the court's attention that those four hundred cheeses exist because we don't have the  quirk it has every single defendant having their product manipulated in every possible way that any product can possibly been manipulated if you go back and you look through the second minute complaint which i did the central paragraphs are cut and pasted from defendant to defend the only real difference between the defendants is the paragraph at the beginning i didn't find work radix sort issue and the paragraph at the end we're identifying which whether the defendant has admitted complete others first or second according to fact what it is missing your honor is specific allegations regarding specific use the specific use of the specific products for the specific defendants and that's exactly and if the to believe all standard is four to one nine hundred fifty eight on the u s s pledge in the long beach in it at the long beach naval shipyard and help defend your claim you know where you were targeted in that period as well as anything else that's related  so it sounds like what you really are saying is that this is not going to win on summary judgment they're not going to win on drywall but i don't see how you could not focus where your potential exposure is and where you would dry direct your efforts to meet the pla because that is the evidence that you get regarding exposure doubt doesn't know exactly where its products were and to really that's exactly you don't know where they sold products they don't know if the distribution changed through their distributors it went to the navy or the you have to have specific allegations that your that the plaintiff not only worked with around your product but that the product was as best as containing and that they worked with around the product in a way that would release private was best to survivors that would rise to a substantial in any complaint is dependent on the facts of the particular case or the situation of the particular case and here what we have is we have in this best us litigation you have forty or fifty defendants you have many many different products that are alleged to be used and essentially what you have is a point of giving you a cut and paste allegation of what happened to every single defendant and that every single exposure to every single defendant has been the exact same way if you look at the completely outlandish just from a common commonsense perspective and when you step back and you look at the complaint in toto what you find is you find not a particular rise our nation against each defendant which is which ju if you put it on with your finger and that then you're done essentially so you know there's really not very many ways to be exposed to as best as even if they got the data cocked did have his best us and we have experts who will tell you that it was designed so that even if it was broken up it would just come off chunks i don't know if you have any experience with caulking that it would just come off and chance whether then dust flying to the air but that's the whole point we have here your honor is we don't have any work with that that type of guy product which takes about twenty minutes to ask but that is what i have to do i'm all in all the information comes from the plaintiff in this situation the plaintiff is the one who knows whether he was exposed he's the one who knows what product california pleading standards as opposed to federal police standards and i say in california you're absolutely correct there's a notice pleading standard but in the federal courts the supreme court is very concerned about this interim increase in settle to address judge fisher's question if you look on volume two of the excerpts of record page seventy three it has the discussion of phelps dodgers what they cleanup as well as the removal installation the wire materials and it goes on explains how he was exposed when he was exposed where he was exposed there's nothing wrong with that allegation at least from a rule eight pleading standpoint just isn't and and the biggest objection i heard from the other side is well the allegations are too similar shutter it's a process liability case involving a a lot of different products they were generally used in similar ways the exposure happens in similar ways during the plaintiff's work life because i just don't think that it is a fair reading of the pleading standards to say that somehow in federal court there is a standard for products liability cases involving as best as against manufacturers of admitted we made us best as products because somehow even more rigorous than rule nine for pleading fraud just that isn't the law