this is a case where the core polow denied motion to dismiss the nod and early motion for summary judgment because there was no discovery and then two weeks later the sume in general just a generic case the district court makes a wrong legal ruling it's just wrong we know that now it's wrong and then a month later carelessly forgetting that they made that wrong decision makes the correct ruling ignoring the law the case not caring about it not even remembering and then it's appealed to us we're supposed to reverse the correct ruling and reinstate the wrong ruling because the district court proceeded that way the abstract not your case so i and i understand  that's that can't be right can it's a discretionary rule you're honest discretionary for us to say you made the right ruling we reverse so that you can make the wrong ruling so that we can reverse you again i understand that judge rogers what's the answer to that that that can't be right right that's got to be wrong or it is break up well you have to take a look at what the rulings are i'm just hypothesizing one is right and one is wrong if the first one is how did i set it up if the first one is that it up wrong and the second one is right you're saying we have to reverse because of that this trick or wasn't consistent below that i got it right well if the district court explain why it was wrong the first i'm hypothesizing there's no explanation that's just silliness woke up befuddled and came down with the right ruling in my hypothetical want to reverse that because he previously had the wrong ruling and didn't adequately explain why the wrong ruling was wrong and that's not we're advocating given the fact that this is this move by the district court are we wasting a lot of time i would like what you're the one that started with well i understand that's how we started the brief but on the merits is where you wanted to go and i do believe you're correct judgment kick the merchant pretty clear because we certainly played enough facts that would get us by it both twamley i just don't see you having played one single fact that said that your clients got this extended w where do you say that they didn't we didn't say they did but we do this what we do say is that initially the new chrysler issued a technical service bulletins and a letter saying that they were going to extend the warranty for it and you create a rush and rot they there's no evidence that your it's the language in the technical service bulletin that and and the letter that you just said you don't need the letter i said and the letters that we have both the letter has doesn't have to be received it's the intention of the actor who's assuming indued and the only time in this case a chrysler says they sent out this letter to a select group of people's cars were made in six weeks during in the rust belt state even allege that you got that your clients got the letter right correct why not because they assumed the duty to all owners whether the letter was received or not so they if they send a letter to certain people and not others that letter constitutes assuming duty to the others it shows what the actor intended to do when it voluntarily assumed  duty and we have to go back like you assume that the letter goes to a discreet group of people not others so that letter then is evidence that they assumed a duty to others that's that's what i just don't understand that actual book and i understand the letter i don't understand we don't know we all i can tell you yes not one of the name players received a letter we don't know who the letters went to letter says you it doesn't say we're extending it to this class extending it to you correct so if it's an end of the you and you didn't receive the letter plain meaning would be it's not extended you i understand that you're saying it comes t obligation comes from something else yes what is it well we now have the second circuit's the pinion in the g m bankruptcy regarding ignition switches and prior to that that used car owners who purchased their vehicles after the free and clear order or not bound by the free and clear order but that's because there was an argument about procedural due process no that's that honor i believe that's due process goes to new car owners the court in the second circuit case you asked us to look at yes i understood it right the plaintiffs procedural due process rights would be violated by enforcing the free and clear provision in the sale or and that went to the new car owners because the allegation was at the time of the filing of the backseat petition g m didn't disclose that it knew of the problem with the ignition switches so there's something in this eliot versus the deals with used car owners that apparently there's four different classes of plaintiffs in that decision your honor one or used car owners one or independent filers and one were new car owners who didn't have a chance to object to the banks or proceedings because they weren't advised that the all car company knew about  order as i understand it did away at least as assumed by the parties in this litigation from a pure successor liability theory correct and that's right and you all don't have a challenge that in this litigation we did not because we were plaintiffs in the burton case and we understood the burton court to a limited that that's not before us then you don't have pure success or liability here in the sense that whatever the previous company of the new company it's guy there's got to be some sort of independent or free world of the way this case was litigated this for i understand that so if that's the case are you sort of saying now you want to go back and say that successor liability or are you willing to argue this appeal on not in that there is not successor liability i am arguing this appeal on that there isn't successor liability in this case is an independent assumption of a duty a so we've got to find a basis for the independent a of duty in order to write i understand that right and if i'm understanding the theory i'm just trying to get the theory for where that could come from it could come from some sort of late in the least we were partially responsible we can form of success liability some sort of well you know you don't require to do everything that the original company would do but you do have some sort of background or that plus something else might be able to give you that is our argument that  ok so you've got that it's sort of doesn't stand by itself but maybe in combination with something else might lead to a duty and something else as i understand it is just pure knowledge that there's a defect is that right there is a there was a defect that wasn't disclosed until after the sell order was right you had not so much of a defect that you didn't disclose but if you had knowledge of a defect of a competitor and you didn't disclose that that would create a duty you have to have something in addition to all knowledge  of the defect is that correct yes your honor so what you're doing is in a sense taking two things which are independently not sufficient and saying well together they create a duty well is that correct it could be but i want to get the nature of your argument that nature of the argument is that sort of zero we don't know we didn't have discovered a fire when the old company first knew of the problem well we had at the legal basis for two things are not enough together they are enough to create a duty at this factory or the success or not enough to create a duty the fact that you know and don't disclose that defect not a duty but if you're if you're one of these people who is not a successor but you did succeed right and you have the knowledge and you didn't disclose it you put those things together that creates a duty is that the law in ohio the law of ohio is a buyer expressly or implied given your red lights on about this question of this voluntarily assuming a duty or extending the warranty yes when i read the complaint you talk about the technical bulletin but you don't say anything of the complaint about that katz ginning award you also talk about the letter in the letter is where you're referring to that constituting an extended warranty that we've we've sort of beaten to death whether the letter addressed to you and you have no proof that your clients were you did or did not extend the warranty so then you went back to say well the technical bulletin extends the warranty so two questions with that preface one did you plead that the bullet extended the warranty and to do you have any law that says technical bulletins extend warranty not by itself but along with other in dish you it can yes and that other in disha would be a letter that you didn't receive and what else we don't know who went to little who we don't know who the letter went to and what what class members of got you got clients and you have representatives and not a single one of them says they got the letter so granted somebody else and the people in the six weeks presumably they got do you have any cases it will what your best case that says a technical bulletin if you have any case it's a technical bulletin extends a one no so it's a technical bulletins plus something else and here that it's the letter right yes and what what's your best case for that a low one second at that you can come back and tell me when you come back if you want me if you don't have a really thank you thank you morning your honour's may please the court the district court here did not hear a greening judgment on the plea to come favor of f c us and against the plaintiffs in this case the district court rightfully held the  relationship with f c us which would create a duty on its part to warn plaintiffs about an alleged problem with corrosion with respect to the engine cradles in their ten to eleven year old pacifica vehicles district court or any issue that is even before this court by way of background the second circuit decision in that case involved an interpretation of a bankruptcy sale order and it considered whether or not new g m which it characterize could be required to respond to claims that were based on the conduct of old g m where old g m knew of a defect in old g m had full knowledge of that defect in full knowledge of potential claims relating to that defect and failed to disclose them and its bankruptcy and failed to provide notice through the potential claimants that it knew of now automatically the court the second circuit in that case held under the unique facts of that case and was talking about the ignition switch defect that had a lot of publicity and there were there were congressional hearings and reports in which a lot of evidence came out that old g m had actual knowledge of the defect and covered it up but under the second sort second circuits analysis what the due process for and that's in that circumstance required all g m to provide direct notice of its knowledge of that defect two individuals who had potential claims and because it didn't do so provisions of the sale order which made the sale free and clear to new g m were ineffective now there are numerous reasons why that case has no bearing the claims that were pleaded here first the amended complaint in this case plaintiff's theory which is made clear and i quote plaintiff state their theory is separate and distinct from any prior duties contractual or otherwise so they're trying to divorce their claims in this case from old car co the entity that manufactured their vehicles and they go on to state the duty owed by defend f c us my client is separate and distin from any prior contractual dealings between plaintiffs class members and any pre bankruptcy legal entities so their theory in this case has nothing to do with old car co and the district court the theory they pressed was the voluntary undertaking as to some be a whole owner's somehow equates to a voluntary undertaking as to their vehicles but i think as the court here has recognized the it just doesn't pan out that way the law is very clear that when an entity or a person voluntarily assumes a duty the law in every jurisdiction at issue here that duty is limited to what is actually volunteered it cannot be a span did to to say that something beyond what was actually volunteered was volunteer now plaintiffs here chose to plead their claims in a way that they believed that would completely avoid bankruptcy issues and that was intentional on plaintiff's part because they didn't want to go to the bankruptcy court they could have but they chose not to indeed when f c us argued the plaintiff's claim should be transferred to the bankruptcy court plaintiffs argue against doing so and to defeat that transfer they it's presley and affirmatively represented that there are men to complaint raises non bankruptcy liability issues predicated upon events activities and negligent conduct occurring after the bankruptcy now we know from the from reading the g m case that that's the exact opposite of what was that issue in the g m case and the g m decision it was all about what old g m knew before the bankruptcy plaintiffs also express lee proclaimed th ca learned of the engine cradle defect and mr weiss just said this again after the sale order went into effect and again that's the exact opposite of the situation in the g m decision and notably the second circuit decision they are deemed it critical that old g m have that knowledge and its due process analysis and plaintiffs also proclaimed in this case that their claims arose under non bankruptcy law and are predicated sole on state law and again that's the opposite of what the issue was in the g m case now here plaintiffs attempted to state a claim based on have see us as alleged conduct and completely disavowed any claims based on the conduct of the entity old car co that manufactured their vehicle now in arguing here that the g m case has any applications what they're really arguing is that they're now trying to assert a new theory which would require occasions time and time again a party can expand its theory and it can assert new theories or claims on appeal they don't get two bites of the apple they can't sit in the district or they do rely on ohio law though you know it's not a successor company where there is such a clause is is bound by all of the obligations of the predecessor company but instead provided something like the following i'm not saying it does but if it did it  in certain types of situation where you have particular access to important information you and you don't disclose it to a collector of people you can be liable to those people for the harm that results from them and one of those classes are the company that has bought the company that has particular access to that information if that's what the ohio loss then there would be said you have a special access to this information such as you bought the company from the car that made the dangerous or not dangerous made the defective part  that gives you the new company an obligation not to take over all the obligations of the former company but the one duty to inform about that knowledge that you have if that's what ohio law sa then you'd have a difficult here is that correct if ohio law was that if we had knowledge purely based if it was pure that we had knowledge of an issue that we had to disclose that issue  then i think the court would have to find that if there was allegations of knowledge then you would have to decide knowledge but they could it could be a law that was limited to certain types of knowledge and knowledge that you have a particular type of access to for this or that reason t may acquire a duty to warn where defects are brought to its attention regardless of the nature of the transaction transferring ownership since it's based since it's not based on the success or status but on its own knowledge of the defect now maybe you can say that's totally out of sync with the rest of the country it does seem to say that your honor i made two things here f c us is not to old car company and that's not  layman sense it is i mean it took over the company right it did not your honor it purchased assets in so in the sense of technically distinguishable from that because it's not a successor company y case your honor if you look behind that case that case was a little inarticulate because there are more factors all cases including under high law you have to have a relationship in order for there to be a duty to disclose anything because otherwise if it was just purely based on knowledge then a sample you gave earlier assumed that f c us came into some knowledge about something was wrong with the g m vehicle well of course us doesn't have to reach out to g m customers the law would never require to reach out to g m to customers and advise them of some knowledge i had so the law in ohio in every jurisdiction requires that there be some relationship and that's why in this case they've they chose to go under this voluntarily assumed duty because you can create a weight relationship by voluntarily creating some duty otherwise there is no relationship between individuals for which f c a us agreed to extend the warranty so what we have here is a situation where there was absolutely no relationship between f c a us and the plaintiffs that issue in this case you have an alternative argument that even if there was there was no yes your honor we advert that in a couple of sentences yes sure on the causation issue as an independent  brown as to why the district court's judgment should be affirmed plainest don't dispute the causation is a necessarily necessary element of each and every one of the claims they pled plaintiffs the allegations in their complaint don't describe causation plaintiffs in the district court and on this appeal have done nothing to establish that their allegations sufficiently why there is no causation yes your honor plaintiff complained of injury in this case your honor is that they have to bear the cost to correct their vehicles due to this corrosion issue you say that they would even if they were warned they would still have to bear the cost even if they were i'm sorry one minute they were warned they would still have to bear the cost is that the there are there are two ideas here your honor one is the only possible cause of that injury is a defect in the manufacturing process assuming plaintiffs are right plaintiffs don't plead any allegations and they just simply can't see us as liable as the manufacturer their vehicles they had nothing to do with the corrosion issue f c us had nothing to do with the crowes an issue and plant a severe cold nothing f c a that they knew about it and didn't tell f c a didn't cause the corrosion you're on or we didn't make the corrosion any more and have see didn't do anything that caused the need for plaintiffs to repair their vehicle so even if as your honor assumes that if f c s would have told these people you know listen you bought a vehicle that was manufactured back in zero two zero three zero four zero five we've learned that there's a corrosion issue which i see us doesn't admit that you in that vehicle that you purchased from a different entity that wouldn't change that there's corrosion that wouldn't change that plaintiffs need to repair their vehicle so even if we told them that their vehicle might might be subject or might develop corrosion damages they knew about it earlier is that what you're saying basically i'm not i don't even agree that would reduce or damages it wouldn't change anything their vehicles would still be subject to whatever corrosion was going to occur regardless if we told them or not go back to the technical service bulletin for just a second mr weiss is arguing that  well the technical service bulletin by definition and practice in spirit just goes to a dealership so it's not a communication to any vehicle purchaser and any vehicle owner so in that sense it could never stand anything to a vehicle owner because it's not directed to not intended to be seen by vehicle owners it's not put out in public really like to read phrase things and change things that in asking that good technical service will  defects in cars and the federal government either requires that they anticipate they will so they send these buttons out right they have different procedures but it's a more troubled motive so now let's go back to this bulletin in particular did this this bulletin in particular as i understand it told the the owners and the mechanics to check the cradles and the suspensions and see if they have perforations and whether they needed replacing that's a note right yes now what the question then becomes mr weiss argues that is an extended warranty that says will pay for it if you check in and find it needs replacing your thank you response is probably pretty obvious but tell me what your responses as to why that in and here's an if the think the t s b here is here's an issue we've identified that might apply to these very specific vehicles go ahead and check them out and they come in  you judge and cake i want to give you the letter assuming that's what the p s p said check it out and see if it needs replacement is there any language in there that says that chrysler will pay for that they will be will be they will replace  is footnote for i don't have it with me your honor but i think it's in the re but no for just as t s b number twelve dish zero zero one dish ten dated october twenty three two thousand and it said check for the engine cradles and front suspension of certain two thousand and four two thousand and five cross or pacifica a v six dash three point five liter vin for vehicles for preparation and possible replacement at that your complaint yes it doesn't done that quote so we don't know that's exactly what the bulletin itself i apologize i don't have it with this my understanding and it's also clarified by the letter and i do apologise i do not have that t s p with me well the it's only clarified by the letter insofar as helping your clients if the letter applied to them which is we've already got been down there oh absent being able to establish the letter applied to them you got to rely on the language of the c s only and if you would like your honor we could add to the record if you think it's helpful apparently you didn't think it was helpful you didn't give it to us surely the t s p is in the record i sumit somewhere i think it is and i don't just don't have a page for it and if it's not and the district court was correct point is that in holding the plaintiffs were not covered by the warrant however plaintiffs do not know ledge of voluntary duty this is your language plaintiffs do not allege a voluntary duty instead plaintiffs alleged that if ca extended the warranty to at least all four and five two thousand and four two thousand and five pacifica's to satisfy its duty to warn of the defect and to garner repeat business there were is that is that the argument that we're talking about here there were two arguments first they assume the duty by the t s p and the letter we've been through that and the second thing is as we have the duty to warn yes and i do have a case where you're tying the two together is that just sort of a misstatement no so you've got that they extend the warranty to satisfy the duty to warn correct so they undertook a duty or than or took an obligation in order to satisfy an obligation they already have and the idea yes if either of those is lacking then the other one doesn't cure or is does either one of them stand alone think they stand alone ok but i do want to or so if we reject the idea that they've extended the warranty because we can't find it in the t s p or the letter you've still got a remaining argument that there's a duty to warn which itself yes it rise ok and i want to respond to judge me see why i'm a little puzzled by the i'm sorry sir you can see why i'm a little puzzled i understand i want to the the basis is the