it please the court what we have in this record is a simple rico case it has somehow been attempted to be hijacked into a contract case and i want to go through the reasons why that is the reason why arbitration cannot occur in this now i would first start out by noting that we only have two thirds in this agreement the defendant did not choose to put in the and could you could you address that jurisdictional question first certainly be happy to have received a letter and basically as i understand it it says i voluntarily dismissed  me go through what did if i may first off the judge ordered arbitration then he have set a status conference for six months later some the report said to him i plaintiff has not in good faith tell the judge anything other than what the truth was which was that we wanted to see if either to litigate the case and this is the most important document because it's one that everybody cites in it is docket number twenty seven and it's pages three fifty eight three fifty nine and it basically says your honor i've respectfully understand where you're going with this we disagree with your conclusion the good arbitration we will not pursue our tradition that's on aircraft three of my letter paragraph or my letter is great stands ready to litigate this case to a conclusion then it says different court student stay but  to say i would like to have the case dismissed and in fact the case they cite most recently that they delivered to the court that person not only asked for the case to be dismissed but had tried to get into law kotori appeal first and was to not i didn't do anything except do nothing but so so you're being you're saying in straight candor to judge equal you said i would arbitrate i'm to refuse to arbitrary i will not are because i will not arbitrate but i can appeal a stay i need you to dismiss it i won't dismiss it as if i dismiss it it's not appealable i thought he could've done anything you wanted at that point but i'm not at all i'm still not asking what he could have done i'm asking what your purpose was was your purpose to obtain a rule forty one b dismissal that would allow you to appeal something that could not be appealed otherwise no my purpose was to litigate the case as i said twice in my mo that's what we wanted to do so your position is that it was a forty one b dismissal for lack of prosecution i would guess some i mean you can read lips the judge said i've read what he said i don't  i didn't you chose not to respond to the twenty eight j so it's the first time i'm hearing your argument as i read the fourth circuit it's cross applying microsoft to this context saying a litigant can't force a district judge create a final order that would not otherwise be appealable out of a tactical intention and that begins to look like where it seems like you were and you write that well the case the person asked for his suit to be dismissed so he could appeal explicitly asked for it i was content to just wait until something else happened and supreme court law could change dismiss and that puts you you claim into sort of the greentree world where it's it's the district court's action antagonistic to your intention and you get antagonistic to my intention to litigate yes ok you know what i mean that is what i have said i didn't want to be disrespectful to the judge when he said show cause i had to give an explanation that was honest and truthfully that we have that i want to let you get your principle argument but if we therefore accept jurisdiction on your theory it looks to me like it's a split with the fourth circuit do you agree with that no i do not because i think that that case is wholly different when someone tries to appeal it and then they ask they ask for dismissal that's how you distinguish a yes i think that you know is no residual because it's in the classification context microsoft was to its distinguish on their gun you do you agree that it virtually lines up but for the fact attacked he dismissed it in that became the entire taurus case without that there never would have been a case because torres went up on arbitration years ago ten years ago pesky for anything in just reporting to the court where you stood the policies and procedures were new and your client came in after the new ones correct there there are there is a change to the other tracing flaws i would say the rest of documents are all about the story so the policy in procedure requires arbitration of any building of any claim is of written words in two thirds of the agreement and how does that not control your your honor the the entire theory of this case the word contract is not even used in the hundred seven page complaint the entire theory is that it's a violation of racketeering act of milling wire fraud by getting money from people by the contract in its terms if you see what you haven't fired me which is not all of it but it does not state how much you have to pay to ignite purpose of preserving well it can't that be presented to the arbitrator not if there's not a arbitration agreement and if it is if it is such what your best case for that i don't know that i have that right now but i certainly can follow up with a cork thank having your best case with you might be a good strategy i think it would be if i is such a stringency that all these other rules about arbiter ability don't mean you've argued that on and on and on it because you say rico that that eclipses any other rules about consistent theme but back up here it's cetera et cetera and so the question is you know if that being the case you've got to come in with more than just sort of the argument so what is the best case you have that would make this panel say that that principle has any links to it that's the question i mean on a table over there but i don't have it in my head well there's no change from you going over to the table and getting it if i can find zero zero point zero or the whole point of all argument is to answer the questions of the court we've read the briefs so you've got some ammo over at the table you either need to get it now when you come back up because this is sort of the last chance we've read this you know we've had tories the cases been up here we've heard it in bank we've got greeks we read all of this and so forth so the question is if you're to win you've got to come with some more forceful than just the same arguments that we've already rid of em i'm not in taking this to i'm just trying to say tell them is what we already know is not going to get you home well your honor i think there's been a mistake in the way i presented it to the court if you understand that i'm simply holding up the work retail and run woods and say no arbitration that is incorrect all right and now would seem to go back to the course a judge we know i ask you that well why isn't it that the in prime paint and i forget the other in el rashid at believe first say that if the arbitration clause itself is the product of fraud that it cannot be enforced and that is a matter for the poor according to the u s supreme court in prime time that's fifty years ago and it seems unbroken in interpretation including recently in the cases they cite lawrence and left fault that it just i know ok so it really falls back on your thought that because the compensation plan doesn't exist in the record that we must infer that there is no arbitration cause but my looking at the record is the arbitration clause is right there in front of us and the burden would be on you to say something that isn't in the record somehow rescinds your honor i would agree with you on that but the the point is if you look at this record it says they do not have to pay any more on any money they can eliminate you at will there is not a single promise in that contract that can be bound and the only thing that they're using that contract for is arbitration that is the only purpose for that entire br view of this case what case from any circuit in the last fifty years applying prima pain has said that we would still be the court to adjudicate that not the arbitrator i will be able to get it if you are or will be patient i apologize that believe it's our sheep but it may not be a deal one i have one minute ten seconds so i want to get down to that the one last point which is among the defendants in this case are the defendants who were in the torres case as ignite associates in that case this court has decided that they do not have an arbitrator bowler and are not bound to arbitration that the presidential directors that are listed as individuals were in the torres classed as i aged and do not and did not have a binding arbitration because of lack of mutuality which the court decided that issue as well now in the case here these people can't possibly have a mutual obligation to arbitrate with my clients because they don't have an agreement with ignite the fourteenth to this ports holding so those individuals are but people who are attempting to arbitrate through a claim based on fraud and the case law in texas in this court are very clear that if it's concerted action but not arising out of contracts the arbitration clause cannot be used by agents does the fact that this was revised  that's our position this whole thing depends on using the ports to allow people to collect money from people who otherwise would be able to carry a perfectly good case if it weren't for the it please the court this case reduces to a simple either or proposition either this is a voluntary dismissal case over which this court lacks jurisdiction or it is a failure to prosecute a case where there is no argument the district court abused its discretion either way the judgment below must stand first on jurisdiction when the district court asked my friend to show cause why his case should not be dismissed after eighteen months went by after the court compelled arbitration and griggs refused to do so he forthrightly admitted then as he has done appealed but in microsoft has baker the supreme court squarely rejected the idea that a dismissal like this one could convert and unappealable interlocutory order such as the order compelling arbitration and staying pending arbitration in two and immediately appealable final decision as the fourth circuit recently explained in kenya vs group on the subject of our twenty a j letter baker's holding reflects quote the longstanding principle that a party is not entitled to appeal from a consensual dismissal of her claims close quote that the eighty six f third page three sixty five that principle is especially salient in the arbitration context and it requires dismissal for lack of appellate jurisdiction here i my apprehension it's a difficult issue but my apprehension is that until the twenty eight jail letter that i didn't see that to be argument the principal brief i saw the principal rea it was that the there even the principal briefs seemed to be forty one and then appropriately keno comes down afterwards and you know to fight us and to me at that point it became a much more difficult issue because i had seen the facts as this not being voluntary that  fact he did insist on pursuing the litigation and so jayco didn't oblige in any way judge just said no and so if i just looked at microsoft in the abstract i'd say that's a vacation case no courts applied it we've got i think unpublished law least taking jurisdiction so my anxiety about following it is this hasn't been breached much at all they chose not to reply to the twenty there is in my mind tension with greentree there's i think i'm right that there is tension with unpublished this circuit law taking jurisdiction in these cases so we've got the four circuit case but that is distinguishable technically because clearly the plaintiff the did say voluntarily i want to dismiss and that may be just a tactical distinction which microsoft uses the word practical but it's a it's a very consequential thing order compelling arbitration and staying in the alternative and i think the fourth circuit quite correctly rejected that argument relying in part on the principle and i think that the supreme court emphasize of the concerns that it protects so i think whether it can turn on whether you file a motion or what it's called i think what's when and i think when the for certain group on refer to consensual i think that's actually a better a better word in other words if you stand there at the district records and it was consensual that's that so were you did you have a twin argument right as you began which is even if we don't think this was voluntary as in kenya you with it was an abuse of discretion yes your honor i think and i believe i heard my my friend agree with you that well it's it's it's one of two things it's either a voluntary dismissal which we say it is but if he disagrees even if the court rejects that proposition then it's a dismissal for failure to prosecute and there is no argument here either today or in the briefing that the district court abused its discretion and i think under under those circumstances the court need go no further to to  affirm thing if despite that the court goes on i think as as judge nina pointed out the arbitration agreement here specifically provides that any issue about arbitron billet should go to the arbitrator to decide and even if this court gets past that hurdle i also believe i heard my friend say that this is as rico case and for thirty years the u s supreme court how justice o'connor's unanimous opinion for the court and shears there is no barrier to arbitrating rico claims again we don't think the court needs needs to get there and i would just also point out in terms of of a you agree it's much easier at the argument for you to prevail is as much more settled to circuit law if we were to get to that point rather than the jurisdictional point which is much more innovative i don't i don't disagree i don't disagree with you that that's that's more it's certainly more more straightforward i do think on the jurisdiction point i think that the one thing that that is important to point out here is that in these circumstances if you have a political bent who can simply ignore an order compelling arbitration and wait until the district court dismisses i think it does effectively try to render that original order or to get around that by just staying rather than dismissing camp well and i think there's no question and i think this gets back to to the point about greentree there's no question that and that's what the district court did here and that is not appealable and that is no one disputes out and no court has ever has ever questioned that so i do think what you have here is if if there is jurisdiction here it's hard to see why other lukens wouldn't take this tack of simply waiting it out and then getting a free and in consequential shot at an appeal with  without prejudice which i think undermines both the interest and phonology that the supreme court emphasized in microsoft the baker and also in the arbitration context as group on the fourth circuit in groupon points out where the whole point is a speedy moving a case speedily into arbitration it's hard to think of circumstances that would undercut that strong policy as much as allowing this sort of tactic here to to succeed so i do think that that is that is a strong concern and in terms of the discomfort about the voluntary versus consensual i think that is a very powerful account counter concern the council strongly in favor of this court finding that it jurisdiction but again even if it were to conclude that it has jurisdiction we think the court doesn't get past the lack of abuse of discretion for dismissal for failure to prosecute him and it certainly doesn't get past the plain text of the arbitration that holds if the fraud goes to the arbitration clause itself which i think it's simply a crime the paying then the arbitration clause is for the court to decide whether or not to go forward with it not for the contract is we do not base any claim on any words in that agreement to far as we're concerned only thing that happened is my client wrote a check for three hundred twenty nine dollars gave it to ignite got a little bit of money back and is still out money period there's no written agreement that provides him any relief of any sort whatsoever the only thing that they want to enforce the only thing that they even have an argument that is  would be arbitration and the reason that we say is that the whole case stems from rico which means every act they did is evidence of fraud and that includes the up traditional and of the delegation clause so but but i get i just didn't see in your brief where your particular arising that your client was defrauded into signing this clause it was instead he got pulled into the whole  basically what happened was an investor was there and they had messed up the investors case for his investments and so they slid an arbitration clause in front of him that he had all sorts of other parts of documents that was a fraud to get him to sign that arbitration clause i'm saying that this contract having no other purpose on the planet exists only to get someone to sign an arbitration clause so they can avoid ever seen a  and that is the only thing in this contract that even makes sense because nothing else provides for consideration to these people and they don't challenge that the only thing they say is well they have a right to sell our energy but no right to get paid for selling it and as i point out who's going to go around selling something just because pay money i'm going to pay you money and you can change the arbitration clause after i pay you money do whatever you want to me you can remove me you can fire me and if you come after me as a company the company's voice now we're just going arbitrary with you and we know that for forty dollars you're never going to wrong when the judge chose to dismiss the action say that the point i'm having here is that torres i gave the judge the same basic argument which is i don't want to arbitrate i filed motions to contest arbitration and the judge disagreed with me an order made arbitration now as far fewer cases that go to the fifth circuit and considering dismissal whether it has to be with prejudice or without prejudice call your attention to footnote twenty five of my reply there is a listing of the cases that deal with this circuit in other circuits but more importantly the greentree case from the us supreme court said it is missiles that is missile even if it's with operators because the only purpose in our patrician is you're dismissing it for the arbitrator