argue this matter i also would like to preserve two minutes for a battle plaintiffs submit that the district court erred in this case and dismissing our claim under rule twelve b six count one tortious interference the district court improperly imposed a heightened pleading standards which it said there was needed to quote corroborate the improper motive of the  interference that's not correct federal judges are not permitted to do that not permitted to require heightened pleading claims not listed in the first clause federal rules civil procedure nine b that's the rule of many cases including the supreme court addressing the second sense of nine b and that's vector research versus howard and howard in there they said under federal rule of civil procedure nine be malice quote maybe a bit of virgin really and i'm the subsequent panels because it's never been overruled on bonk in accordance with in accordance with six circuit rule thirty two point one be that the complaint itself said that the reason there is taking it actions was to expand its refinery that's why why would a particularly want to target your client as an anime purpose or spending a billion dollars on their honoree well there are two purported reasons if they're going to expand the refinery what they they've done is in buy out an entire area actually that's imprecise they have not they purchased some of the properties in the area of the residence but if you're going to expand it are you going to leave in your expanded area or your green zone crumble business here vacant lot over there  it's kind of in the path is situated in the area of the proposed expansion why does that mean that they acted with malice towards your client's business as the reason for spending a billion dollars to expand their refinery well actually at this point that discussion is premature because i mean your complaint elsewhere is saying marathon did this for reasons x y and z and we did we mention of a reason that frankly makes zero sense whatsoever as a reason for spending a billion dollars on earth why can't the court sort of use that degree of sort of ordinary sense in reading the complaint there's no factual predicate one of the things that marathon did throughout  court said this is legitimate we don't know what's legitimate in the elias case the plaintiffs conceded in their complaint that the undertaking was legitimate we dispute that we don't think their reasons are legitimate the expansion may or may not be except they have a long history of polluting this syria they've been sued repeatedly they are currently subject to a consent decree under the federal for violating the federal and the federal environmental standards so can we can we automatically assume that somehow this is a legitimate undertaking of please we would permit me about your use of the term legitimate how are you using that term that's one that's one of  the legitimacy of the action if you have a legitimate reason for what you're doing that undercuts the possibility that the plaintiff or the injured party can claim that they were  and so but it would affect you're saying their stated intention which you allege to expand is is not undertaken in good faith that they're spending this money for some purpose other than to expand and you say it's to run your clients out of business well we say this we say there are several purposes we argue there are several purposes in terms of malice again we do not have to submit a factual scenario to support that under the second sense of nine b but we say yes they may want to expand their refinery in this context given their history is that legitimate we dispute that but we say and we will into it we intend to prove that they're one of their intentions with regard to buy out program is to eliminate people from disputing their historical environmental infractions what does that mean they have they've been sued repeatedly for polluting this is one of the worst areas in the state of michigan it's a terrible they've blanketed the ok so you saying they're just they're trying to get rid of people so they don't complain that's one of the reasons ok another reason is well i guess one way to look at it if i'm going to buy an ongoing business you know generating hundreds like that one of our plaintiffs kerry carcas had a grocery store in the heart of this area in the heart of oakland now which is a better way to get his business to pay the current value of an ongoing and successful business or force it into bankruptcy by wiping out its customer base so you're and they eliminated that they're going to then repopulate they did there were twelve hundred of the new grocery store what's that that that your theory is that this is an effort to take over the grocery store buy or the trade by buying up all the residences having those people there by lowering the cost of the grocery store buying that the grocery store sale prices and then reselling the residences and moving people back these people out one because they'll complain too because they want the property is not a legitimate reason what's that would be a legitimate reason for refinery to buy my house because i'm always complaining about the about the air quality well if if would that be a legitimate reason for a refinery to buy my house it could be moved somewhere that night might not be in this context we submit that why would that not be legitimate it depends on the facts of the case that's our point there's no factual predicate here there is no fat they haven't led to nothing they've never filed an answer there's not an affidavit there's not one shred of evidence in this record and we will prove out these things we we submit that their purpose was not just to acquire that grocery store but to acquire all the property in the area to suppress environmental claims from neighbors businesses whoever that have historically been made so they are not just after mr carcasses a little business growth actually a pretty substantial business but the buyer down the street other business situated there if you strip the neighborhood of twelve hundred residents and four hundred twelve on its citizens twelve hundred four hundred residents that's going to affect those business and very nice of me to reduce the cost to buy those businesses reduce it to nothing in some cases i don't know these things i get it well but in some cases these people went bankrupt and they acquired the property has taxes a property a business that might cost them one hundred forty thousand  and they acquire it for two thousand three hundred dollars an attack sale if that but we submit that that was that we will show that that was their purpose was to decimate the value of the businesses decimate the value of the vacant properties there and to eliminate suppress valid and violent mental claims council i'm sorry it's at least for me personally one of the problems is that you're just arguing too many things and too many of those things have problems so when i read your complaint and you're you're objecting to the fact that they offered these people non negotiable you know contracts because they didn't want them to complain and then asking myself well first of all you know what why is that their problem and secondly what's wrong with that i mean there's nothing illegal in marathon trying to buy out the area so i mean  i i don't see it i don't see why your client can or anybody can complain that they're trying to buy out the area to suppress complaints now if you get a little bit further  you and i'm not even sure if you're saying this if you say that they had part of their plan together for the cheapest possible was to offer the money to the residents with the purpose of having them no longer the patrons of the businesses so that they and not offered to the businesses so that they could get all of those people not to buy there with the direct purpose of lowering the price and getting it for it's not the fair value of the property and i'm not even sure if you're arguing  that i am arguing that they wanted to suppress the value of those businesses the press the environmental clams and suppress the value of the business of the so but when you say that i agree using when you say suppress the environment to claims it's like with i'm sorry how is suppressing environmental claims tortious interference with business well the way they did it we alleges in a surreptitious way i mean if i have an environmental claim ordinarily one would expect that you're caught you've got a minimal fine give us a release we'll pay you a thousand five thousand seven thousand for your environmental claim they didn't do that here what they did is when they bought these properties they had a program that discusses in the why is your why does your client have standing to get to the fact that they bought people's property without giving them a kicker for the environment to claim well they didn't they didn't advertise it for one that they were taking the environmental claims we say that's an improper purpose but the point is my client's business they have standing because as a result of the buyout program their business has been destroyed they have no business some of them still are functioning barely but they don't have  it's destroyed as a result of this program to depopulate the area if they did not pay fair value ok let's say they gave everybody an extra five thousand would your client be in a different position while of course it might be but that's a different factual scenario and of course we have no record there's no evidence they've never found the answer so that all of this is interesting but it's a little bit spent a little more than speculative let's move to the new sins can you tell me did you do you think that you properly played news we think we did i mean we've been exposed for years including the peer to toxic chemicals they're listed in the complaint very detailed listing of the toxic chemicals down in the area people part of the reason people left we submit was because of that part of the reason people did not do business with our clients is because of the of the i'm going historic pollution of this area i mean people really don't like to live where there are complaints there's a long history of complaints with the m d q we didn't get into that detailed factual scenario and against marathon for what they have done in terms of polluting the area that's  one of the reasons why they're subject currently to a consent decree by the federal government after they got their permits they are still in violation of federal law and they're being monitored that those chemicals  it please the court amy johnson appearing on behalf of the apple e maritime petroleum company i think mr getting said it correctly when he stood before you and said there is no factual predicate to this case there have been no facts alleged in this case in fact when he stood up here and told you that there was a grocery store involved in this case perhaps the caption might say that but there is no allegation that any of the plaintiffs actually owns or operates a grocery store the plaintiff didn't even give us the basic rudimentary facts within their control we don't even have their addresses we don't know they say that they were located in our around oakwood heights but they don't give us the property the caption tells us the caption of this case tells us that two of the businesses were formerly businesses we don't know when they stop doing business we don't know what type of business they did we don't know if their business is the type of business that gives off a mission could be an auto shop could be an auto repair shop we are simply left with nothing we're left to guess we would submit judge duggan got it right the district court looked at the second amended complaint and determined that there were no allegations there were no factual allegations to support the claim and that's exactly the case here i would also submit mr giddings that there was no case that addressed rule nine other than factor research this one thousand nine hundred six case i wholeheartedly disagree the us supreme court addressed rule nine in the context of rule eight pleading standards and in the case specifically howled that a plaintive cannot avoid the strictures of rule eight by merely claiming that they only need to plead malice intent or knowledge generally and that's exactly what the plaintiffs are trying to do here well they're giving facts i mean the complaint basically says the marathon wanted to expand and wanted to pollute and so wanted to get rid of the neighbors so they could do so freely and in effect took a tack where they were going to pay the residents and figured that will get rid of the businesses be the second amended complaint your honor that as i read it the only allegation that says why the marathon purportedly instituted the oakwood heights property purchased program was to quote preempt claims that some paragraph eleven and as the court has has noted to preempt claims any business that that attempts to preempt claims that's a legitimate business interest and as their palates agree illegitimate and business and vitiates any type of group or do you saying that it's impossible to read the complaint is alleging that i agree there's a lot of extraneous matter in there that  one could understand as intending to allege will be really don't stand up but included in the are you saying one cannot read that as saying that part of the plan was to pay the residents to leave with the intends that they no longer frequent the business establishment and therefore they will be able to get the property the business property for a very low value yes i am saying that that is not a fair reading of the complaint there's conclusory allegations which are to be given the credit of truth but there is no there's no allegation that marathon under took the property purchase program with the intent of harming these plaintiffs and i and i think the elias case that we cited is really instructive in the elias case freddie mac put the plaintiffs on a list freddie mac actually took an affirmative act and put a did something with respect to this plaintiff and the court still held that that was not enough to show that freddie mac put that plaintiff on the list in order to interfere with plaintiffs businesses in this case there's nothing in the second amended complaint that says that marathon undertook an act for these specific plaintiffs to run these plaintiffs out of business and again we don't even know what types of businesses these are but there's nothing to know x there's no facts there's nothing for us to legitimately infer that marathon under took an entire oakwood heights property purchase program for the purpose of interfering with the well you wouldn't plaintiffs it wouldn't have to be the purpose of the whole of it would have to be the purpose of the expansion i mean within the legitimate purpose you could have a sub purpose that was a legitimate or illegitimate means  and what it what about the nuisance i mean you're there's there's allegations the obviously very plausible that you're putting up all of these admissions when you file the paper there was need missions that the emissions would increase there's been some e p a activity that validates that allegation what what i mean we're talking about a pleading what more did they need to plead on nuisance i'm glad that you raised that your honor it's important to keep in mind the nuisance condition that they allege that the specific plaintiffs in this case allege is the brief the refinery expansion which according to their pleading became operational in november of two thousand and twelve and they allege and they only allege your honor that that expansion and quote increase emissions did not excuse me did not significantly they don't even legit significantly increase but only increased at an emissions it's interesting that the plaintiffs allege that earlier and this is based on their cleaning earlier filed an action naming marathon as a defendant but there is no allegation that that claim had anything to do with emissions had anything to do with the refinery expansion had anything to do with what plaintiffs claim is the nuisance in this case because they also allege that case was settled months before the expansion went into effect right so logically it would be that that that case has nothing to do with the refinery expansion no or deep well i don't read it that way i read it that yes that was a prior action prior penalty and now you're putting out even ok so forget about that it says that you're emitting all of these pollutants and that it's affecting their their it's making them uncomfortable it's their noxious fruit for you it's keeping people away from the business i mean what more do they need at the pleading stage they actually don't allege that your honor and i would say that they're not they're nuisance claim is particularly scant and in fact when they filed their first amended complaint and we filed a motion to dismiss we had oral argument on that specific you know on the legitimacy of the allegations and i  and the court the lower court specifically question the plaintiffs asked and the transcript of the hearing is clear the plaintiff's lawyer says and i quote we'd be happy to amend that portion the nuisance portion of our claim to explain with greater clarity exactly what our claims are and how they flow from the changed situation by maritime petroleum the lower court granted leave to him and when you compare the first complaint to the second amended complaint the nuisance counts are identical there's no new allegations there's no change in anything they certainly don't allege how this expansion has affected them in any way or how it's a significant effect from from how things were before and it's it's played to a specific contention in this case that it's the reef the refinery expansion that created the nuisance condition but they don't tell us there's no facts to say how these plaintiffs were affected and the michigan supreme court took great care to say not every nuisances actionable in the ad can scase that we cited the michigan supreme court said it has to be significant interference it has to be unreasonable it has to be substantial and if it's not it's not actionable and i we would submit there's no facts in this complaint to infer that these plaintiffs suffered any significant or substantial honour's just to i want to clarify a couple things when she says we asked to amend the complaint of the first time at the motion on the first our first amended complaint that we were going to amend with regard to nuisance it's absolutely untrue the transcript is not reflect that the discussion came up about malice and the sufficiency it's of our of our allegation of malice and we amended for that purpose with regard to nixon specifically wire's case the supreme court says the f alone and whether the extent to which you're affected is a matter of proof not pleading and so we submit that our nuisance claim is sufficient given the language of  they started be at to vittie the added activity expansion that's correct ok the additional environmental insult if you would the other thing is again that they keep wanting to talk about evidence of intent rule nine b is is clear ball's clear to and you can't just make a conclusion reallocation of an element even if that element is maliciousness and well actually argument is we don't see a whole lot of other indication of malice towards your client particular well they left when they quoted from a ball in the district court they quoted rule requiring detailed pleading of a condition of mind would be undesirable because absent overriding considerations pressing for a specificity requirement is in the case of