we are here on the dismissal of the plant's amended complaint which which alleges claims arising out of her work as an independent contractor with the defendant excuse me the plaintiff worked according to the terms of the contract that was in part written and in part or the terms of that contract are we believe very highly detailed and set out in our complaint terms of the contract and other a lot allegations concerning the performance of the contract we're here because it district court dismissed the case we believe due to its erroneous applications of rules eight dollars twelve cents the federal rules rule eight obviously requiring a short and plain statement of the claim showing the pleaders entitled to relief and rule twelve allowing for dismissal only if the plaintiff fails to basically establish a claim that could ever pass muster we're here because the district court i think it's clear from the decision below did not as he was required to do accept  all factual geishas in the complaint and construe all reasonable inferences pled in favor of the pleader in this case as holcomb this case is on appeal i think rendered a little more difficult because the district court for some reason divided the plaintiff's six causes of action into what i understood what the reason was it isn't the case that essentially all of the claims depend on two promises that she says were made to her and maybe it's promissory estoppel maybe it's a contract claim maybe it's something else but there are two promises essentially one is that she would be paid commissions essentially for life based on whatever business she brought into the company and the other that she was promised that she would have access to documents about sourcing and would be told that the sourcing changed right and if if there was not a sufficient allegation and as to at least one of those then she wouldn't have would any of these claims still survive yes your honor in fact the district court did not address that nd which which which one which claim would survive if it were insufficiently alleged that she was promised either of those things oh you're referring to all the other claims besides that's right i mean in another when you started with was you know the district court divided up into these two issues but aren't those the two promises that underlie the elements are different for different claims but unless she was promised one or the other of those things or both i'm not sure how any of the claims arrived that i would agree with that you're right of the problem why or why isn't the issue as the district judge that you're going to say i assume that the complaint clearly does plead that she was promised both of those things therefore all of these claims survive rather than fail that it isn't that really what the issue was here i think it is slowly  all we have is a pleading issue in the plaintiff's complaint as your honor noted has two components to it in the terms of the contract formation aspect that is if she procured online business she would continue to receive commissions on it wasn't for  as long as that was produced and they stick the dates on that point the basic allegation is that she was promised the same deal that frank holcomb her father in law had had in that capacity that was one of the promises that was made to her yeah well with respect to the commissions that was that's the underlying allegation that plus the fact that it is alleged that mr holcombe and a few other people actually received commissions into all age notwithstanding little quote little or no activity on the sales front i think the analogy around it would be an insurance salesman who  gets continued commission and her allegations that the promise extended for post terminations when she leaves the company and goes and works for a competitor right there that holcomb and the others are not in the that situation your honor the allegation is granted there is no specific allegation that says if she is disabled or otherwise no longer able to service the business she can she continues to get the commissions what her deal was is that once she procures the product line and it's there and the customer continues to buy the care again and product she's going to be compensated for that even if she works or at least the company works for them and your honor if i may that is why our complaint specifically mentions the individuals with whom she communicated and has these agreements because it's our position that as alleged in the complaint there were a series of communications over the years that confirm the terms of this agreement let's let's be very clear the only allegation that i see that relates to what the only allegation that says this is what i was promised is i was promised  and the only allegation as to what frank welcomes deal was was that in fact he received commissions into all age notwithstanding little or no sales activity there's no other allegation that says these are the terms of rank holcomb's contractor i've seen is written agreement or this is what he told me he got in terms of specific terms of the agreement with the arrow where during an in agent for the company for the rest of his life we don't even know that he's got commissions either into his seventy's or into his eighty's or until he died whenever he died which we don't know from the complaint and from that we infer that this was a pledge of lifetime commissions terminations term including france terminations your honor yes i agree with that however i think we have to focus on the deal that the plaintiffs had and the allegations that she had mr the deal involving most of the i'm going to determine the all she had was frank holcomb's deal of the only allegation as to what her deal was well the allegation as to what her deal was if i may set forth in paragraph twenty two of the complaint in part which says she would continue to receive commissions for as long as that customer continued purchasing care again and for the product lines pla draw because at that point in time she was no she would no longer be representing the company that letter can be interpreted as an addition to the two thousand salary you get the commission and that's talking about you know your regular commissions while you're getting a salary but not  would necessarily interpret it that way especially in light of the additional discussions that the plaintiffs had for the next over the next fifteen years during which she was associated with the company and again just going back to the pleading and what what inferences can be drawn from the pleading the plaintiff's position is that once she secured that product line for the particular customer and they continue to take it that her deal with another party on the other side of the agreement was that she would can continue to receive the commissions and we have named the individuals at the company who were in responsible positions of the president and majority owner of the company and it's our belief that if this case is remanded and goes back down we're going to do some discovery and that individual is going to confirm the terms of this agreement  initially he referenced and agreement that occurred two thousand and that is the the document that was presented she in the initial round of briefings represented that the family in terms of conditions were present in that document  as your honor noted that document clearly contemplates a situation that where the person is currently working with the company it talks about netting the commissions against the base payment of two thousand dollars and talks about paying for reimbursement for certain expenses and childcare expenses there's absolutely nothing that can be inferred from that agreement that would suggest that it would be ongoing after she ceases working and there's nothing in that agreement that s the district judge recognize that i think that's one thing that's important here is that the district judge was extremely thorough he gave you know two opportunities to come in and argue these issues he had a very detailed discussion of what he thought would be necessary to create a possibility around some different agreement if it's not in the written agreement which was referenced in which he said has the family it turns out for commission if it's something else you would need to say what it is procured regardless of whether plaintiff was in fact servicing the account at the time the sales were made so whether she's doing anything with those customers or not she will continue to get commissions that's what these great customers and she says she had five hundred thousand dollars a year in commission income rolling in and she just stops doing anything then what happens under that terms of that that's true that she continues to get commissions regardless of would have to do is to continue to do something for the company even if it has nothing to do with the accounts in question if she makes a lot of sales calls or even sales call to some other possible customer every year and granted this seems a relatively unlikely kind of contract for a company to make i'm just concerned about what it is that is alleged in terms of the promise that if this promise was made in these terms it's a somewhat improvident promise that's the promise that even if you're not doing anything for mcdonald's anymore but the mcdonald's  your product for as long as they keep buying the product she's going to get a commission regardless of whether she's doing anything at least with respect to mcdonald's on behalf of the company so i would say with respect that again i think if she's really there is probably some latitude in the example the judge provided where you know you have a retiring offering partner and that partner gets paid somewhat more than perhaps they are directly worth because they're transitioning from clients you know that's basically what he says that's true with respect to the gentlemen who are paid until their seventy's or eighty's that is not a scenario that has anything to do with the situation or she leaves the work for her i also just want to read i mean it was all i mean it's all make sense to me as to what a reasonable contract would be but i'm still having trouble that's not exactly what she alleges and if somebody you a good relationship with some of your customers and you help us transition to other people you'll keep getting your commissions for a while that's one thing when it says whether you're working or not whether your service account allegation it's a rather specific allegation that the prison the company promised her this why doesn't that give her at least to take the deposition of this person who confirms or denies that happens  paragraph nineteen she says she's going to get four percent of all revenue from all sales to customers she secured so that is the initial version of the complaint all revenue from all customers regardless of product line then in paragraph twenty she says the october two thousand letter marshaling memorializes the terms and the only thing she says that is that it is a base salary then she says there were other assurances along the way well other strengths is that were related to product lines i mean it's just completely inconsistent which i think cause the disregard to say look there had a lengthy discussion at the st argument if you really have disagreement what is it and the plaintiff can answer isn't the point that express discussion of post terminations commission and absence such a discussion nobody would reasonably reliable that's absolutely right and cases like then to that now would say you know you don't assume that that's what exists absent an express promise for it if it's alright with your honor's i'd like to turn briefly to the standing issue because i do believe that was a part of the reason that the judge looked at these that's correct your honor and i just wanted to point out that you know as your honour's pointed out the only source saying allegation that is supposedly directly to the point is one relating to access to books and records essentially there's no substantive we will use these manufacturers they will meet the standards the rest of all of that is in paragraph twenty nine through forty two and seventy one they all talk about the customers the customers some customers had kosher requirement some customers require deemphasize by the way there's a paragraph where she said yes i was not required from two thousand and ten some customers required use of facilities that were not in china but she says others were fine with that so essentially what she's saying is that over the years they assured me they were meeting these customer requirements and i began to doubt that and i was forced to leave because i felt that was going on was wrong in order to litigate that issue we would literally have to go through every single customer agreement not only what their written or departments were but whether there were any exceptions because for example they wanted a particular manufacturer but that manufacturer wasn't available at that time and plainly as the court held these are not her rights both from a potential standing point and from an article three injury point this is really not an appropriate claim for her to  prejudice but that does not mean that she should be permitted to replay these allegations fashion there with you don't have injury the court doesn't reach the merits it doesn't mean that you can go back and try again but the without prejudice would mean that if  and i'm not sure you're on i mean i've never had a plane i've tried to refile after a court finds that they were not adequately harmed but i haven't haven't explored that but i do agree that if that is the ground on which the record is affirmed than it the judgment should be amended we did however raise the alternative grounds under twelve b six we think that the issues of possibility are even greater there and there is a number of other additional issues obviously won't belabor that the district court did not address on the twelve the six level these other what he referred to as sourcing claims we we've already talked about the commission aspect of this kind of disagreement but the fact is we have all played out geishas that there were promises made to the plaintiff that certain things would be done in certain ways for her protection at least to me what the the damages there because it's the allegation as i understand is that she was promised that she would be told if the company was no longer complying with its promises to the customers in effect and i'm sort of wondering let's assume inadequate product to go do your best to sell it if the companies if the customers cared about that they would then turn off and if the companies didn't care about that then she wouldn't be harmed either way because you know they would continue to vie some trying to understand why she suffers damage not because the company substituted substandard product which would make it harder for her to sell and earn commissions but because she wasn't told that they were doing that your honor the point it was making money on the sales matter one and she was guaranteeing the the source and quality etc how she harmed because on number one she was if she she was put in the position of either having to tell the truth to the client to the customer in which case the sales are going on or scuse me or she could participate in a fraud essentially that was mislabeling concerns or sorrow or she either way is there some harm that is associated with breach that is different from what she would be faced with under performance the bite as a result of the breach of this agreement iran or the plaintiffs could not continue to service those clients and i would have been true with performance also right if they honestly said oh by the way we're not going to live up to our promises to clients she'd be in the same boat right at at that point presumably if they had been straight with her presumably she could have tried to work that out or negotiated or make different make different ranges learn about before she left her your honor she was as as pleaded she learned about it and when she complained and tried to have it rectified they told her if you say a word about this we're going to come after you and if you you either go along or h least and part of her representational obligations are to be truthful with her customers that's how you would see them is part of the damages here would be reputational harm it would be loss of her goodwill and her industry would be a loss of future business opportunities she had to walk away because she had a hob choice and she had a very lucrative position as a sales rep she obviously was very good at her job and she was well compensated and t v are these products that guaranteed her notice in the event of a change in to use an inferior product it's not only that you're out of the company had obligated itself to let her know if they changed for want of a better word from a certified production facility to a non certified print production facility and they didn't get it and then at that point she says i don't like this and they say well that's just too bad that's what we're going to do it's cheaper well that that number that we will that would have to be obviously communicated to the client and my client would have to do that conduct and she could not do that and because she could not do that she had civil and criminal liability that she thinks she tried to resolve the matter and she couldn't and and had to leave and as a result of that is a direct result of the breaches of the defendant's agreement or by putting breaching need dream and putting her in a position where she faced civil and criminal liability but i mean i you know i think that she had seen her expenses