our claims is that specifically that the issue of whether are our clients land force the specific provisions has been delegated to the arbitration as well doesn't that and when you have to have an agreement from the atom from the desk or card saying essentially i'm not going to decide it but i'm going to make about defining it anyways about waiver so i'm wondering once you are fast response is to the fact you've litigated this case for seventeen months or projects are those we have no contractual relationships with any of those three parts so in terms of how the case has progressed the case has progressed and so specifically with those forms with those different types of right track the entire procedure on the street imagine in the most of this mess but then you go on and ask you imagine it both times and he set up a scheduling order and negotiate a scheduling order to have his case tried in court and i can't figure out how that cannot be a labor of your right to arbitration when you put the other party to so much out work well with respect to the work that was required with respect to the claims that were pled the claims of the proceeding against remax killer williams separate claims that were litigated those claims that were grounded in separate listing agreements those didn't go forward at least according to the plain us regardless of how our motion to  case made a specific analysis that i think seppo for reviewing considerations here and that is the th circuit is the position insertion case there is a specific focus on the parties was not appropriate or  signatory enforcement we believe that the court you know if this were to be considered by this court or to be considered by an arbitrator you are one of the analysis that holds is appropriate under the hue a decision that the missouri supreme court made in two thousand and  the motion below admitted conceded up front that they are not party to any contract with us they said neither services and either the names plaintiffs nor any purported class member has any contract or direct relationship with him services contract there was no non signatory and the court also emphasized that before referring a dispute to an arbitrator the court must determine whether a valid arbitration so that's the question for the court does a valid agreement with  and it has a very unique procedural history there where the party the party resisting arbitration actually drafted the arbitration clause and had been arbitrating for two years with the party seeking to continue the arbitration effectively there were two separate arbitration agreement that issue the st one was fine with an entity called fisher and then ultimately f j and the different but related entity initiated aaa proceeding against eckert and then  after you drafted this you wrote arising out of a related to you didn't bound it by referring to part to the contract so you've affectively agreed in advance that the universe is a rd party beneficiary of this language and  can is entitled to this delegation of arbitron billet whereas here it's bounded very carefully to the parties to this contract it can only be enforced by the parties there's even language that the result is only binding on the parties here to services wouldn't even motion to dismiss as significant discovery activity even the the answer that they talk about it was one hundred and five days later that they finally moved to compel arbitration after filing that answer with a little footnote and this court has case law  for this panel all the factual findings can be reviewed for clear air i think the factual record is clear enough that this panel can easily find a waiver but to the extent there's any question then you know it can be remanded for factual findings to in fact be made but i think it's relatively clear on arbitration no so every circuit courts that is examined the issue of whether litigation conduct waiver is something that is delegated to an arbitrator or should be decided by courts has found that it should be decided by courts arbitrator is best placed to evaluate compliance with procedural arbitration mechanisms but the question is what is the effect of your actions in federal court over the last three hundred and five days the federal case earlier but it's the shockley versus prime lending case that i think is the as with henry schein makes it very clear that there's always an initial gateway role for a court to determine if the parties before it the two parties before actually have an agreement to  agreed to the language she saw allegedly on on this screen of the handbook and you know they're kind of such situated here similarly in that services as to the employer there they can point to some language on a piece of paper that says you military but the question for the court is was a contract actually formed between these two parties was their offer acceptance consideration and in that case this court this panel found no there was no contract form and so nobody could enforce it and saying here they conceded below they don't have any agreement with us so that would include they don't have any agreement to arbitrate our reachability and i'm also one of the i think henry shine in braces that principle as is one of the to enforce that and the supreme court favorably cited that and rasha and so i think that it's just not the case that a stranger to a contract can come into court and say hey there's delegation language over there in a contract the plaintiff is a party to council there are a couple of distinguishing characteristics here versus accurate i just want to give it a chance to respond why it is is that narrower language in these agreements limits the parties not anything arising out of the agreement which was the language as you know i'm summ two conceivable applicable true sense of aaa rules neither of which present a conflict to the proceedings that would occur here so in that that's with respect to the to those details in terms of the  was in fact delegated to other cases that point out quickly as for the protect industries case we think this does confirm that with respect to the presumption of the delegation we think that's instruct