twenty six based on the form selection clause is premised on the district court's failure to apply the appropriate legal standards which should have been applied as this should have been converted to a rule fifty six motion and sail to identify the standards that were relied on in the the order also based on the fact that when taken in the late most favorable pathless class trying north was not able to establish that there were no ok to do submitting some contract for the installation of one sample window which was the price of six hundred and sixty five dollars m you have a fundamental problem in the case which is you brought suit that suit expressly says that the suit is brought based on that particular subcontract it uses the number of it it repeatedly refers to it and now you are trying to present an argument to us that although that was your pleading and you are judicially has stopped as to that we are to now suddenly decide there was an issue of fact about which contract was at issue here i understand that if that is the contract it is shoe then you are stuck with the selection clause and that you still have the arguments remaining as to obviously all of those issues and concerns and the issue at the time that the complaint was filed was a lack of information which was similar to what was  could talk to your own client you could review your of your client's correspondence you were the ones who alleged that you were suing on a particular subcontractor so amended and that could happen any time up until the trial was suppose for a moment meet we said that ok we put that to one side you still get another problem to subcontract an issue with the one i had previously and i just completed filled out the rest following their instructions essentially now it was his he degenerated so i'm not going to question any of the facts regarding that but the impetus behind it i think confirm that was good with them and now you want us to say that this invoice wasn't for their contract your honor his interpretation is i just asked them to tell me what they wanted and i spend a couple of minutes on the next stage of your argument that it's an unforced simple for equitable reasons of course and thank you and just lastly if i can just touch on that very briefly what ultimately is happening here is that the terms of the so contracts are being applied to atlas glass without him having a chance to negotiate a contract and the terms because that sub contractor has relied on was solely for a once in a window it didn't even cover any of the the amounts or the other placing so i'd suggest that the merger clause does not supersede  form selection causes only in those circumstances when there's no overweening buying power d in this and in fact noted the multitude of issues when dept into that case as to why it was appropriate there was  it was a mutual site the parties negotiated the contract it made sense it was reasonable there were all sophisticated parties involved in fact the young and based on that the federal time i don't want to the number of cases noted that  i'm sorry i don't have that case in front of  me apart from that do you have any reason why under the circumstances here there's something particularly egregious about equitable about enforcing that within those options there's also options as to the rules so that is there's lack of mutuality there that's one of the things that justice chief justice burger commented on is and in this case essentially the company had represented on multiple occasions that that money was owed and now requiring a smaller well very unsophisticated company to have to point your honor the district court looking at the allegations in the complaint specifically found that the subcontract govern the party's relationship and as suppose you noted the sub contract in its existence is repeatedly your leisure to complain at ordered a very limited discovery on contract formation what contract covering the parties dispute and we did down the track you counsel you bounce through the question there's nothing in the record about why there is  that clause is a pretty handy device for basically jerking around smaller companies if you wanted to use it that way you can make them travel halfway across the country your client gets to decide which forum or not there is there is a least on a superficial level something to the it can be used unconscionable i agree with you that there's certain provisions in that contract that are one sided you're right but i think when you're in forcing a foreign selection clause you need to look at the court in the correct form decide those issues but we've got to get to that form st and that is the th and that analysis focuses on the form selection clause itself and here the form selection clause is bilateral it basically says any  dispute whether brought by my client trying or or by alice must be brought in detente he was constant and i think the supreme court's decision in the carnival cruise lines st should is important because that that creates predictability for my client my client as entering into contracts they wrote the country it's a general contractor and the predictability of having all litigations in the same form you know i think the supreme court in carnival cruise line case noted reduce handled separately and assuming they continue to attempt to collect this stet they also have available to them and the argument that the attorneys fees itself should not be enforced and that is and tiredly separate from the crime selection but i understand that correctly you're not conceding anything you're just saying appeal so so there is a you know not quite a quite active litigation but it's there and it's waiting and it's it will be i don't know if it will be pursued but you know if there is a placeholder litigation in place in position that massachusetts was the correct point to litigate this case so request so the issue of transfer was not preserved in the before judgment entered on the dismissal claim only after judgment entered i did i think that properly before this court because it was not timely appealed the notice of appeal in this case entered while that judgment was pending and appealing to judgment but no notice of appeal or no amended notice of appeal was filed within thirty days of the district court denying the motion to reconsider regime so it's trying to its position that that that that water in the requests for transfer is not even properly before th and the controller indicating what the problem was so they had a for an accounting reason they and then there's a number of other e mails they are follow up and indicate that they took the position that one of the liens that atlas  last week seen that argument in your brief do you have anything further to say to us yes with respect to this that your limitations your honor and the transfer i believe that there were  eighteen up until the ruling it took several years to get this matter before the court so we are blaming the district court for not having filed a precautionary action in thank you thank you your honour's that concludes our commit in this case attorney no evidence an attorney stanley should disconnect from the hearing at this time