may please the court my name is william riser and i represent the appellant michael i see here today to ask the court to reverse the decision of dismissal of the district court and upon remained to transfer this case to the eastern district of pennsylvania the district court's decision to dismiss this case on the basis of form not convenience must be reversed because they are allied upon an improper application of the supreme court's decision in atlantic marine and an inaccurate interpretation of the party's form selection clause in this  case and again that the supreme court referred it continuously as a residual form and only to be applied in that small subset of cases where there is no political foreign excuse me district court or federal court form with this cla was silent that is to which court it is said that pennsylvania was to jurisdiction right the that's correct judge but the key is the actual language of the clause it says in pennsylvania and as this course stated in  global communications in every court decided this issue means when a clause says in a state it's referring to geography which could include both state court and federal court and i think that just a court realized that itself it actually acknowledged that this clause could include both state court in pennsylvania and federal court in pennsylvania the issue is that the issue court got it wrong by concluding benteke marine requires a specific federal district court that's not the court's analysis in fact the court the disregarded emitted that jurisdiction would be proper in any one of the three federal districts within pennsylvania but i think the important thing is if you drill down further on that there's actually only one of their briefs they dismissed their motion to dismiss so there really is only one district that's proper here and that's the eastern district of pennsylvania and that's where the court got it wrong i think it had the select it didn't if it just really if it reviewed that and in fact we expressly acknowledged that admitted that it would be proper in the eastern differ pennsylvania and our motion for reconsideration all of this goes by the wayside if you are right on your second point which is that the district court should have ensured that you would be able to refile without call tech asserting a statute of limitations defense as long as you instituted your action within a reasonable period of time right because if the district court got that wrong then you're not prejudiced and it essentially acts in the same way as a fourteen zero for transfer you just got to go file over there i guess the only difference is the filing fee but other than that you get to go if the forum selection clause does not have a district court  the filing court cannot transfer the case under fourteen zero for aid to some district court say in pennsylvania pick one out that form none convenience applies and the parties have already decided so the problem arises that a litigant who files the lawsuit in a wrong forum because by contract he's obligated to file it somewhere else and who delays along a duff and sits which would allow dismissal of this action simultaneously we could if under their theory under your honor suggestion we could have filed in state court in pennsylvania they could have filed calabria objections a motion to dismiss and all is pending would pennsylvania consider the statute told while this litigation is going on it is a matter of state law no judge and i think there's circus is clear about that as well that that a dismissal without prejudice is not told the statue of limitations and that's what we have here court correctly applied form non convenience analysis in a traditional form non convenience analysis one of the things you consider is whether or not there's an available alternative forum and you usually give the plaintiff the opportunity to file somewhere else and you tell the the defendant are you going to agree to allow the defend the plaintiff to file within let's say sixty days in the alternative for without asserting a statute of limitations if as that is done run of the mill informed on convenience cases and i would think your best argument is that that wasn't done here even on reconsideration and that didn't put the dis any sort of buying to the dismissal order would still have been in place it would have just had the additional language to allow you to refile in pennsylvania i think that's a very good point judge and in fact this court has has stated subsequent one manic marine that that's could file a lawsuit that you're not supposed to be filing where you did it and you could stand on your heels and say i'm insisting that i'm right which is what you've done and i'm going to the court of appeals on that position not on the position that the court should have done something else the court should have entertain the case that's a risk you take judge again how do we write an opinion that gets around the problem that you put the district court in a in the wrong place and then the alleging long enough so that the statute runs where you could have filed the how do we work we've got to write an opinion that commands the respect the laws that work well judge again i think respectfully it the court in atlantic marine that with the same situation they could have said if you found the wrong district you're outta luck they didn't do that they delay going through the litigation well while the statute runs elsewhere it may answer i call that an abuse of the process of the judicial process that used to be a a transfer a court in the federal system you transfer under fourteen zero four and that's what we have here there is an appropriate district the eastern district pennsylvania that's falls within the ambit of the farm selection clause it's easy to transfer and secondly if they're  transfer before judgment was honored we asked for a transfer in the in the most for reconsideration and then fifty eight ninety motion you raised an issue that had not been raised before the district court of the district court had jurisdiction and had discretion to say it's too late to change the lawsuit in rule fifty nine eight and i'm not going to pay attention to it but will judge quickly we should we say the district judge abused its discretion by not entertaining the fifty  nine which raise an entirely new proposition but judge if we right that opinion then we expand the jurisdiction of fifty nine eight don't we well judge i think the district court's error occurred earlier than that its first the court dropped the ball court should have transferred the case in the first instance and he knew on his own initiative what you're standing there saying this is where the case should be  you know how do we write that opinion what judge i think the district for understudied had navigation to review that in the first instance the as you mentioned neither party talked about transfer but what is the court do the first thing they talk about atlanta kareen can i transfer is there a federal for other forum federal court but that's what that case was in atlantic marine well just i don't think a lot of marine is that narrow it says well would you agree that in atlantic marine there was another federal court date that a federal district court mentioned that's correct but it western district would be proper no one resides there middle district is not proper is proper under provision georgia but i think that's the interplay between thirteen ninety one and fourteen zero for this judge to navigation look at both of those and decide eastern district is the correct form here that's where everyone resides that's where the witnesses are this is where this case should be transferred because it could because eastern district is within the federal system and that's  we do about a california case in what regard you're doing the filed suit in california you follow suit in mexico or someplace in the case blonds in california under same clause without a designation of the court its own initiative so which of those does it pick out well judge of how do we tell the court how to pick it out it would depend on the facts of that case hedge it depends on what's proper under thirteen ninety one where where the defendant resides  judge just to figure out what the world would do but you say withstanding your honour's warning by the description you have tossed to mr riser about is exactly the position we have in that the appellant is asking this court to instruct the district courts throughout the eleventh circuit to ignore everything the plaintiff said everything the plaintiff did and protect the plaintiff in the district who are from his own actions legal strategies and decisions after he loses after he plays out as your honor stated plays out the shoring of his litigation position and runs out the clock on a stash limitations and i can't say today whether that was intentional as your honor was asking about and or an effort to limit what the district judge could do or was just a bad legal advice in front of the district court play out that string and then save him from himself and save him from the errors once he decides now i may have lost my case and that's even been his position and is in his they'd had not run when we filed our motion to dismiss there was more than two weeks left and in statue imitations litigation two weeks is an eternity i mean the case law is all about the people who filed the new morning with a motion to dismiss chose not to then withdraw and file with time left in pennsylvania pennsylvania it also happens to be as a lease i believe of a fairly unique  jurisdiction when it comes to stash limitations because as we describe in our brief has the has a procedural vehicle called a writ of summons one of the primary purposes of a writ of summons is to initiate a lawsuit without a complaint in an effort to toll the statute pennsylvania also has equitable tolling where a party who has who has surpassed the stache limitations on its face can argue for equitable tolling and show that you know they did not delay they had a viable lawsuit in florida of course those arguments would have been much stronger a year ago when the case was originally dismissed as opposed to now six hundred thirty plus days later when plaintiff at least as of yesterday believe mr riser confirmed has yet to initiate any type of lawsuit in pennsylvania can i ask you a question about your your motion to dismiss certainly in traditional form non convenience law one of the things that the defendant has to show is that there is an attic would have a low ball alternative form right yes you are in this case as you just told us at the time you filed your motion to dismiss you think there were about two weeks left on the federal clock i believe eighteen days yes ok so give or take about two to three weeks somewhere somewhere in there did you tell the district court that you were willing to waive a statute of limitations defense if the lawsuit were refiled in pennsylvania as you desired within a reasonable amount of time in your moving papers we did not at the time the statue limitations was not an issue if plaintiff then one of the motions got to get resolved the motions got to get resolved and the motions not going to get resolved before the statute of limitations runs and so my question is did you did you and it may not make a difference but i want to know did you ever tell the district court that you were willing to waive a statute of limitations defense if the lawsuit were refiled within a reasonable period of time thirty sixty days after dismissal on formed on convenience grounds we did not hear on a why not again because the statute imitation is had not run and one on ones once it ran did you tell the district court that you were willing to waive we did not we were never asked and plaintiff well isn't that part of your burden we did identify the form nine as a form selection clause and identify pennsylvania and it sixty three possibilities sixty state courts or the three federal courts as the proper forum but we're not talking about geography we're talking about time we did not ever offer that  imitation is was not an issue we also if you look it footnote eight of atlantic marine it talks about as as your honor pointed out that a litigant while being prejudice by risking the stache limitations by moring a proper forum so action cause that prejudice is not undue and it's a risk that they take in fact the plaintiff in his responding papers both asked for a large amount of  time it was procedurally improper the first time he filed then he corrected it in both of those filings he indicated that no party would be prejudice and at no time until he filed his motion for reconsideration did he ever step back from the position that pennsylvania was an inadequate forum in fact and never step back from the position that the contract itself was improper he stri stuck to the position that this case was a florida case that had to be litigated under florida law and in florida and anything else was on acceptable i guess my position before you get into the again so if you've been called upon by anyone to say what you wait your client's response would have been no tractor ok would a district court have been within its discretion maybe even sue a sponsor to require you to let's suppose you have a case where there is no merit in the plaintiff's case zero merit and saw the law now requires you to say with a zero merit case i'm going to waive the statute of limitations and encourage the plaintiff to go and  and pennsylvania where the transaction costs depending on it kind of a lawsuit or this could be a class action mayberry my client that's exactly why we would not especially now again more than a year later wave a statue of limitations defense now that doesn't mean that the plaintiff can refile tomorrow and s pennsylvania we would obviously oppose that particularly given the next the amount of time that has occurred has passed but that plaintiff's plaintiff still has that opportunity and and has had that opportunity for well over a year and not availed himself of that opportunity to allow court to weigh in on that undergo an affirmative undertake an affirmative obligation now to review this clause instead of dismissed on or atlantic marine say ok where is the best plaintiff now stating that he's represented by counsel has not waived any or all of those affirmative defenses that is an unprecedented obligation that would be placed on a on a district judge and his or her staff that the plaintiff is arguing for yet it's the second or the second side of the coin where the plaintiff is saying you know i can take this position i can tell the corner to not transfer the contract is not binding i can tell the court there's no prejudice i can dig my heels in as your honor says and once i lose i say oh no i was wrong the contract was riser said early in his argument the case should have been filed in pennsylvania but plaintiff chose not to do that and he chose to fight our efforts and say that it should not be transferred it should not be followed it should not be even considered under pennsylvania law and that the contract was invalid and and lost and then once he lost he he did a one hundred eighty degree turn and is looking for this court to balance out and correct save him from himself would counsel have been in any violation of law or ethics to have this case pending both in federal court in the eleventh  and then file it in a district court in pennsylvania i believe there would be potentially some arguments like first filed doctrine and things like that i am  i mean the purpose of a writ in pennsylvania is to preserve the statue imitation you know that he could have filed a writ and done that as we outlined in our brief but council chose not to do that chancel intentionally chose not to do that it is certainly our belief you know given the filing that they put before the district court in response to a motion to dismiss that florida is the only acceptable jurisdiction in florida law is the two they could immediately follow request for a complaint to be filed that's in the federal if the rules of procedure there in pennsylvania and then they could immediately fell a motion to dismiss on a list and then it would be right back to where we are today so that's really no suggestion whatsoever and back to the form that convenience arguments judge jordan was talking about it again this court has held repeatedly that it is an obligation on the district court to determine whether or not there is an adequate alternative form or the plaintiff can reinstate his suit the district court but you know that here and i think you have some valid points but on the other hand courts take cases as parties and certainly represented parties present them and try them and if you're fighting the clause from day one and you've never given that this trick court an argument for doing something other than your main position how can you fault the district court for not doing something on its own judge first i made a that i was not involved back then but i don't mean you personally i mean your client and his or her representatives should i think the issue is that again it comes back to the affirmative obligation regardless of what either party says it's an obligation on behalf of district court so he's the district judge has to run through an entire forum non convenience analysis and address a factor that you don't put before it or argue or anything like that it's got to do its own balancing it's got to do its own and in alice it's got to do its own research everything else well judge i think we did brace that issue back on a motion for reconsideration and the court cannot you didn't ask the court you didn't as far as i remember you didn't ask the court to make altec waive its dotted limitations court even on reconsideration you could have said ok if you're going to stick to your ruling at least make them waive the statute of limitations so we can go to pennsylvania and refile but you didn't do that your july and didn't do that well just i don't think that was specifically requested in the in the brief however the fact that the racist action imitations defense and the fact that equitable tolling would not be applicable i think that's when the court should have said hold on wait a minute here this is something out to take a look at the plaintiff will be prejudiced his case is essentially over this case is primarily employment discrimination case under title seven under the a da so the suggestion that there might be state claims is not really relevant because this is primarily employment discrimination case if the special imitation has on which it has his claim is essentially over he may have some you know subsidiary claims but in essence he's out of luck should the courthouse doors are closed to him all because the court didn't require require that the defendant waive the session and i know you didn't ask