morning your honour's and bad place in the court i'm josh katz for the appellant genome a lab usa inc the first point that i'd like to start with is the issue of constructive fraudulent transfer we believe the district court erred you perhaps start with yes because i'm a little puzzled and my right that the district court held that some of the claims in your complaint were in fact properly filed that there was no defect in  them i don't know if i can characterize it that way i think i think he found that there was no defect under rule twenty six in terms of pleading claim he did find i think it was defective that we didn't plead it in the other case that on that basis dismissed without prejudice actually that's a peculiar defect but at any rate they were dismissed without prejudice and not only without prejudice in the sense that maybe you could fix something but that there was nothing to fix it was just a question of shove them over to the other complaint it is a particular defect and if i don't agree that it was a defect and that it was a correct thing for the district court to do but b that it has made he did it and the result of that is that we have a final judgment under twelve i'm not sure how is that different than what would have happened if the district court had dismissed the claims that it dismissed on the merits and left the others standing and then consolidated the two cases and how is this different in that i'd agree if he had done that there would be no appellate jurisdiction the difference is he didn't do it maybe as a practical matter the result is the same they dismissed the exact same claim and just refiled it so that they could make a timely jury demand on the court held the dismissal without prejudice to refiling the case all over again the exact same form was final under twelve ninety one and why why not just so i don't understand what the remand would be to essentially reverse the dismissal without prejudice so we have two actions pending now you would think a judgment and remand the case with instructions to the district court all claims and parties but so the issue is that whether the dispersal as to the other three without prejudice makes it not final as to those three right well but if it's if it's final maybe it's final to the extent that it was an error to dismiss troubled by the idea that appellate jurisdiction can be manipulated to permit the appeal of a piece of a much larger litigation and without any certification that the normal standards for saying there's no just reason to delay an appeal or that making that and just sort of shifting things around perhaps on the s order gives you an opportunity at least to argue that there's a final judgment but i do think this is a case where it's more efficient to hear the appeal now when it probably would be appropriate under rule fifty four to do a search and why why would that be why would in this case reviewed on appeal rather than waiting for final judgement when it's a kind of standard story that the party brings claims against five defendants and two of them yet dismissed  y that's another issue we have to relate a gate and in fact the district court expressly said that he thought it was more efficient for them to be litigated together that's sort of why he did this dismissed and refile ruling on i think i understand your position case that we cite if you dismiss a claim without prejudice to refiling it in some other case whether it's in the same quarter state court or somewhere else it's it's final under twelve ninety one you sent you saying and correct me if i'm misunderstanding  with your position that the district court's judgment is a final appeal i think a party always has a right to try to come back and replete or even if the entire case is just dismissed without with prejudice failure to state a claim you can always make an application say i have more facts i have more things to allege and in fact that's so we're sort of taking the just record up on that statement where he said if you come back with more allegations i don't know what allegations we need to come back with but i just want to make clear we're not waiving or abandoning that complaint then the normal thing to do would be to file that and then if the district court says no that's still not good enough then you definitely got a final order but if you take the other option of saying this is dismissed with prejudice and then it gets appealed here and now if you win you win but if you lose then i'm not sure how you get to say later well now i'll take advantage of my opportunity to a d that would seem to be both terribly inefficient and to be precluded by a final judgment affirming a dismissal with prejudice of those climbs i think that's a fight we should have another day if and when we we get to that point we try to do what i think affirmed you can make a rule sixty motion you can always try to get back and i don't think the fact that you have that possibility means the judgment is not final for the rule sixty motion that's a different thing but if there's just if you're saying in effect we could or less as of right as he said before because any party can always seek to file an amended complaint after a dismissal that would be something different as a practical matter i don't know how we can satisfy judge daniel sentially akin to tortious interference and we'd have to allege that these these people personally caused venus to breach that we don't we just don't read the case in that way the case law seems to say over and over again that even if you never heard of the contracts until after was breached once you find out there is process a and your company has a big claim against it and if you try to strip it of assets that is sufficient to pierce the corporate veil so we think that's just you know an error of law the result be the same whether you apply florida or new york or anywhere else as far as i know on the fraudulent transfer issue the only rationale that i can discern from the transcript for dismissing the constructive fraud claim was that we had to allege that the salary used the word salaries in quotes because we don't think these legitimate salaries were different from what they were paying themselves beforehand and again that's not anywhere to be found in the statute of the case of the statute simply says is the company and solvent did it make a transfer and was a reasonable consideration those are the only three things we have to check off and i believe we do and even if the salaries were always sort of no shows salaries whatever the legality is that on its own feet when the company is solvent things change and the company becomes insolvent exactly you can do that when your company solvent i'm not saying it's it's unusual or proper but once you become insolvent you can't do that anymore and there's a great decision that your hon the merchants case which i think is very similar factually you had testimony by the by the principle that he was paying a self a salary he couldn't articulate what exactly he did and your honor how that was a question of fact as to whether there was adequate consideration so that if we if we just to be clear let's say that we for the sake of argument we agreed that there was a judgment and remand the case with instructions to consolidate the cases i would ask if you do vacate the judgment to give instructions to the district court that the claims against a regular cereal were in fact adequately planned if assume you agree with their arguments on the merits because otherwise i don't see that as efficient if the idea is just to remand the case so that the court no longer has appellate jurisdiction and i don't know the court can do that because i think that in one sense would be manipulating right and the supreme court has said time and again that the court if you have appellate jurisdiction you have to exercise it where there is no discretion not to so if that is the idea i would like to see some direction to the court that yes the construct if we can't and even with respect to miss they are just as they are bound by the form selection clause in the contract between venus and genoa and i think it's interesting that even in the in the have no response that argument they don't say why they might have cases we cited doesn't apply because i think the answer is it clearly does the case law says is that if you are closely related to a corporate signatory to a contract that has a selection clause you are bound by that clause and you have to litigate in new york as a result so those are two jurisdictional arguments which the district court did not reach thank you thank you this appeal should not be ruled on at this time a determination the contract issue in the first action will be dispositive of the other claims and issues raised on  a final decision is one by which the district court disassociates itself with the case no such dissociation has happened here instead you know what brought this action against five defendants alleging two claims the recovery fraudulent transfers and gating these two very same claims against three to five very same defendants additionally hall stands for the proposition that when multiple cases are consolidated each constituent case must be examined separately to determine whether appellate jurisdiction exist if this case the one on appeal was examined separately from the remaining claims and parties that were merged into the first action or will fifty four be certification would be required pieces action presents more than one claim for relief and involves multiple parties accordingly a police request that the court not determine this issue into the first action is resolved additionally i'd also like to pick up on the court's questioning concerning the in persona the jurisdiction genome has already conceded that it has dropped its piercing claim to get store cereal in terms of a corporate veil even though she's not a signatory well those are two separate armor so they allegedly she appears to corporate veil we don't believe that they have made allegations sufficient to pierce the corporate fail in florida  testified that he negotiate the contract in his personal capacity and not in the capacity of venus they allege that didn't know about the contract they weren't familiar with its terms they make other allegations this involves the advertising side i mean it let's say that an employee of venus signed a major contract on behalf of the company aren't the officers of the company bound by its terms the company may do companies should be bound by his terms but i don't believe the officers and directors would be would have if they don't have the knowledge of the contract they simply don't so they the re's no allegations concerning or no allegations an inference could be made concerning that he even knew about the contract and in fact her deposition said she didn't even know that venus had agreed to sell airtime to do you know mom and that's also allege on two different grounds within which they actually played themselves out of so first of all they allege that because the two women had an active role in the company that they should be bound by the form selection clause however their allegations also that these women did little to no work as to both women so i believe that's also in believe that paragraph seventeen and sixteen as well of the proposed amended complain so they can have an active role if they're also plea they're pleading that they did little to no work and this is something that they added not just in their initial complaint but their proposed amended complaint additionally to case law that the site is far from settled in this circuit now they say they cited this on appeal but if there have been decisions from both judge coat and judge crotty saying that this is the decisions that they've been citing particularly now no pierce aren't settled law in the second circuit law and and the person in the plaintiff and not all peers relied on those statements that were certified and signed by the c f o and the court held that the c f o in that instance having certified those documents  was was a signatory in closely related to dispute that issue which was whether or not the shareholder relied on documents signed by the c f o in this case the women have not signed any documents relating to  there's no allegations that they have any ties with the state in new york the venus is a florida company they reside in florida there's no allegations that any of the alleged fraudulent transfers i took place which by the way is their salary in the most part which they are alleging took place in florida they simply and indeed the state of new york isn't even mentioned in the first complaint or the amended complaint there's there's literally no ties with new york such to subject them to the personal jurisdiction of these  favor i just want to pick up on the last point on personal jurisdiction they are the sole officers sole directors and sole shareholders of venus the fact that we allege that they abdicated their responsibilities in those roles i don't think should be become a jurisdictional virtue and get them out of the reach of the form selection cause i think if you're the president and vice president you own the company you have as a matter of what you have to be closely related to the company and you can say well i don't really i really do a lot of work or at least two le i don't do a lot of work so i should be subject to jurisdiction that just seems a little too cute to me at least there are ties to new york i should but the contract the janitor's there is an agreement was negotiated at the plaza hotel in new york so it's not as if the parties had no connection to your can just put this form selection clause in there and it's in there and that's that's actually alleged in their answer at length in the in the record on the notion that we have to show conduct tantamount to fraud the corporate veil when the when the courts say tantamount to fraud they don't mean fraud in the sense of misrepresentations and in fact there's a very good quote from a florida appellate case called turner murphy where it says fraud as used in this sentence talking about a veil piercing connotes fraudulent conveyances distributions or other transfers designed to remove corporate assets from the reach of corporate creditors and may have nothing to do with material misrepresentations of fact intended to induce detrimental circuit it used to be if two cases were consolidated and a judgment is entered in the consultant action case why aren't more of the actions consolidated in which in the hall yes that was just as a standard rule forty two consolidation but i find i don't know how they can argue that whole