is these courts have address is whether the defendant is a debt collector under the act and because millen funding is a debt collector it is responsible under the f t c p s a as a matter of federal law for debts collected on its back in there are several reasons why this is true as a matter of federal law under the first congress to find communication under that the c p a is conveying information regarding a debt directly it is whether the defendant is indirectly collecting a debt is a matter of federal law not whether defendant is vicariously liable as a matter of state second congress to bind debt collector to include you agree and that you argue that middle and falls within does it use the term directly or indirectly because it's seems to suggest a debt collector means any person who uses any instrumentality of interstate commerce or the males in any business the principal purpose of which i'm sorry the principal purpose of which is the collection of any debt or who regularly collects or attempts to collect directly or indirectly debts so this doesn't doesn't directly or indirectly fall under the hens line of cases as opposed to the principal purpose line of cases and doesn't the part of the statute you have here not used the term communication  that's great p r and i don't dispute that but i think it does it does point to the fact that congress recognized that collection activities get a career you know through with without a doubt those who regularly collect may do it directly or indirectly  be liable but what you're trying to do is support directly or indirectly into the violation here and i don't see where communication ever used and i don't see how this portion of the debt collector statute gives him direct liability here so  use communication so when you look at the geneticist case which you sort rely on very heavily and understandably that was a she case in which communication is in fact used yes but i don't i think collection activities and and that's the st part and secondly because it outsources it is that not directly responsible for those activities that that that were outsource so they're sort of related arguments one is that it's not into is that he didn't directly engage in the content because it outsources in the st half of the brief addresses both of those kind of came in the connected manner because they are connected arguments and it makes this point that indirect indirect communications are covered u recognize that it's a debt collector even though it outsourced everything and i think that it's the next logical step from that is that if it's a deck collector if congress intended it to be a debt collector because it outsources everything even though it outsources everything it must deals with a similar question under the e p a and it's a very similar case the dentist outsourced junk faxes to marketing the counsel in that case the f c c specifically had an interpretive rule which that's fair but not the only point i'm not really the only point i'm relying on palm beach golf center for is the point that is whether the whether the source of federal law comes from you know an agency regulation or statute that's still a federal question of why that any reliance on state law common law vicarious liability your claim is this is a direct liability case under a plain reading of the statute right you know we have we have we have said that if the court i think that we have not argued that a standard of my curious liability that incorporates state common law that you would have an opportunity to argue that in front of the district court but that's the extent of argument with mister beck before you sit down and have a lot of given credit in it but but the party and the settlement agreement and the party in the complaint in the state court cases there's something that we hear that's familiar to all of us in these after cases and that's that the statute is to be broadly construed so as to effectuate its purpose but that deference that breadth of construction only applies to the f and doesn't leak out to the fundamental basics of federal civil procedure in practice and so what that means is the plaintiffs who bring claims under the f t c p a are not excused from those fundamentals they still have to show that they have article three standing they still have to abide by rule eight a which requires them to plead a short and plain statement of the claim that they intend to pursue they still have to meet whatever burden of proof applies to whatever causes of action they do choose to pursue but in this appeal mister reavis asks this court to apply that broad construction that courts have embraced for the f t c p r i to federal pleading rules and to burden of proof and he asks the court essentially to not only relax the federal pleading standard but to apply a different one to f t c p a plaintiffs alone such that if there's a a cause of action under any set of facts it's a fall back to the any set of facts standard the twamley rejected that and complaint sufficed under rule eight he's asking the court to excuse him from having to meet his burden not only of proving the claim that he did plead in his st amended complaint but the claims that now on appeal he says both he did claim and he didn't have to plead and he's asking the court to remain in this case so that the district court can the company you represent was responsible for the conduct of m c i right that was an argument that was me no your honor i actually disagree with that let me read a portions of the response to the summary judgment and then to and then i want to hear would you say this is from page defaulted debts and collecting on them through and c s and then on page five and six quote middlings communications to plaintiffs through the state court lawsuit and through the website to which place it was obligated to make these payments are in direct communications  back to the very st page of the opposition i think context matters here and what mister remus is arguing is only that middle and funding is a debt collector and nothing more because absent from that section of his opposition and absent from the were in direct communications it does not say and meddling funding is liable under x y and z for those in direct communications made by a good credit management that's the loop that's missing the sentence that your honor referring to on the bottom of page five i says midlands communications through the website are indirect communications and are thus afforded coverage under the f t c i interpret that sentence to mean the representations district court clearly understood the district court rules they were responsible these weren't representations for them i mean if the district court's not confused and i've read you the sentences and i don't seem to be confused at least as the argument that they do make i'm just having a hard time understanding waiver here well for two reasons number one we have to go back to the fundamentals again and if you look at the operative st amended complaint and you read it i think mister beck is correct that it absolutely asserts a direct liability claim it hold milind funding liable for midland fundings own conduct not for the conduct of anyone else and the the appellants opening brief makes reference to magic language no one is advocating for the use of magic lang which here but there needs to be some indication in the complaint of the claim that the plane of six to bring it in this appeal mister reavis says that he's seeking to hold middle and funding liable for the conduct of middling credit management but right down to any conduct at any point in time so we have to start at the beginning and look at the claims that were pled because the whole point of rule eight a possibility standard is to put them in the funding on notice of what it's expected to defend itself against and at one point i think the appellant suggest that you know we should we should go through the complaint and look to see if there is any set of facts under which we might be held liable under any theory and that really puts the defendants in the ultimate catch twenty two because as your owners know if you don't plead an affirmative defense to something you risk waiver but at the same time if you throw every affirmative defense at the wall to see what sticks you're going to get a motion to strike real quick and the district court is going to grant that if there's no factual nexus between all the affirmative defenses that you've thrown into the answer and what's actually pled but let's assume your honor that that your interpretation of those two sentences are correct and that's an argument  agency or direct liability for indirect conduct theory by the time summary judgment rolls around your honor it's too late this court has held that an opposition to a summary judgment motion is not the time to amend one's pleading and so invited the f c c input in palm beach call center the f c c made two really important points number one that dish network only applied to the voicemail untaxed provisions of the t c p ip and not to the junk fax provisions of the t c p i and secondly as your honor pointed out that in its one thousand nine hundred and ninety five rule making they explicitly held that ultimate liability lay with the entity or entities director was that goes to the merits but on the issue of whether you need to cleat specifically vicarious liability year this court in the carrington mortgage services case noted that under consumer protection laws there's still a need to draw that line between the principal and agent because you're on a play out the opposite purportedly hudson enrquez signed by the law firm for a debt she didn't recognize and that summons turned out to be fake it was a fraud we hear about this all the time the media talks about you know crackdowns on phantom debts and phantom litigation under this notion that a plaintiff doesn't have to plead or prove any type of vicarious or agency theory as long as that creditor meets the f t c p a statutory definition of debt collector then that creditor is going to face liability for something that is a fraud counsel you may be completely right on that and frankly i'm sympathetic to what you just said but that to me is very different from the waiver argument and whether something is to be pled are not that goes to the merits and on the merits you may be completely that the plaintiff has to put the defendant on notice of what it is they're bringing in front of them and what it is the defendant is expected to defend and when a complaint alleges you did this but then on appeal the plaintiff says oh no i meant you did this through your intermediary and there's never been any indication that any of this has ever flowed from an intermediary during the course of the case in the trial court i think it's very difficult to say that a plaintiff doesn't need add a minimum to plead something sufficient to put the defendant on notice that there is an agent principle theme underlying the claim that they intend to bring and i think your honor asked judge brasher asked a really good question why midland credit management wasn't sued as well it's absolutely incorrect that this plaintiff wasn't aware of midland credit management's involvement in this wasit until in the middle of summary judgment practice the complaint from the inception has indicated middling credit on line this is a plaintiff who is very identify as their parties but the plaintiff is the master of the case that he wants to bring and when a plaintiff says i went to you your millon fundings website and i saw information which by the way  him because i you know i i meant to talk about standing st and we talked about other things but he received information that had no impact on him he continued to make his payments he satisfied his payment plan the only conduct he took that was out of line was to confused as he testified that he was quote concerned quote really upset that he was stressed and worried that he lost sleep his fiance can tell he was stressed out at a hard time concentrating and a hard time sleeping just about every single night your honor that was his testimony with respect i believe to midland fundings failure to dismiss two of the three debt collection lawsuits and not with respect to what he viewed on the web site and the district court that you know the opening line of the trip shall opinion from over the summer is really apt and it reminded me of the of the facts of this case where the court said the plaintiffs complained that they received a debt collection communication that was misleading but they don't complain that they were misled testimony and at the time we moved for summary judgment did not think that it was an appropriate argument to make because of the testimony that judge lott just read because he did testify that he lost he testified that he was distressed he testified that he was confused but i think not maybe not so much trysail and cooper but the district court cases that have flowed from shell and cooper since they were released that's what made me give standing a nd glance and as your honor knows yes yes ju website or a credit company's website that they now owed close to ten thousand dollars if you're calculating robert locke's profit and loss for a given year my balance sheet and on the plus side  know the very few that i have and then on the last side they could have got increased by ten thousand dollars overnight is that not affect my at my economic outlook in a very real way as opposed to just getting a letter in the mail that says i don't really owe something your honor i have to answer that in a really lauralee way and say that it depends because we can't look at that incidence in isolation we have to look at what flowed from it and what did mister reavis do after he logged into midland credit online he testified that he immediately recognized that that was wrong it's in the declaration that he submitted in opposition to summary judgment his conduct did not change but for taking the screen grabs he testified that he knew what he owed he testified that he knew the ramifications of not making payments on time because essentially what he was in was a consent judgment with a stay of execution he did not miss any payments and more importantly he did not pay more than he was a good then he had agreed  pursuant to the settlement agreement so i think that it's important not to take these things in isolation for purposes of trying to articulate a concrete injury we have to take the whole circumstance to see if this was a concrete injury sufficient under a true shell and here dressed isn't having she was dressed by the district court's reasoning here where it says there's just no evidence that person use or have control over the website that you're complaining about and i mean i saw that as the district courts reason for granting summ collector here that's being argued and the evidence shows smith wins and it's undisputed that middle and did not make the representation itself i'm having trouble understanding how we get from step one to step two because it it  by the by contracting with midland credit management you conduct all its collections activities it was engaged in the collections activities and if you just indirectly yes that is that it is a kind of agency where their indirect like we're going to imply indirect liability that you're relying on doesn't have that and it doesn't none of the definitions of any other terms for life and directly well i think it's true that a debt collector can be a debt collector even though it has no employees in it outsources all a regular practice i'm sorry that's the term that i meant it to use and i don't i don't think that it's been it's been argued that that isn't that and c m isn't good in the regular practice because we didn't have it when the complaint was