good morning your honors may please to court rhonda anderson on behalf of album seeger through his next best friend his wife marjorie seeger before began with the core issue underlying the  minute complaint the real issue in this case that needs to be addressed is the right of individuals with mental disabilities or limitations to be able to have their case heard in federal court well let me ask you something about that it seems to me that this is very fact driven this case if he can form if mr seeger can form the intent to decide that he wants to go someplace and articulate that intent right then it seems like he has standing but that but that's exactly what's an issue whether that has been adequately alleged  so it seems to me like this is actually just a very fact driven or allegation driven in this case issue that we have to decide here today yes or no and i'd like the court about the congressional findings about individuals with disabilities because this is an issue that has the ability to come back to this court again we have individuals in society and i'm i'm sorry to interrupt you but while you're answering that also if you could why didn't mrs seeger just still in her own behalf on her own behalf because you know there are cases where we've said if she wanted to take her husband with her to the pub and she couldn't do that because there are barriers there then she has standing to file suit as well i would agree that that she would have standing to file suit as well i wasn't a drafter of the point so it was not alleged with regard to individuals with mental disabilities i think this is a recurring type of an issue because we have individuals that have strokes we have individuals that have autistic problems that are going to need their best friend or mother their sister the brother to bring the cause of action for them because they cannot speak but you're not suggesting well let me let me just make sure i understand what you're what your argument is are you suggesting that if a person is unable to form the intent to want to go back to someplace that that person has standing they can form the intent they may have a desire to go they may not be able to speak at the time that court has had so the evidence can be produced in other means congress did not say that in order to have standing in a really responded to some of the arguments and answer brief that you have to have the capacity to testify and i saying you have to have the capacity to testify i agree with you on that but i want to make sure that we're understanding each other so so your argument is not that he has standing simply because he is alive he is standing because he can form he is capable of forming the intent to want to go back to the pub and he has in fact form that intent is that right that's correct ok so this is really this case is all about factual allegations that it's not really about the right of a party who has mental limitations to be able to file suit under the a it's all about how it's alleged in this case or am i missing something if i'm missing something please let me know well i'm directing at the lower court's order in particular page four in page five where the court reaches certain conclusions based upon a comparison of the earlier complaints first as the second amended complaint and one i submit that's incorrect under fifteen a if you unless you incorporate by referenced into the proposed the many complaint you can't reach back to the prior versions and say connect with differing issues though and then whether whether a certain type of individual has the ability enter the a to bring  case right correct in the facts in this case shows that he needs his wife to be able to take complaisance was not just take him places it needs his wife to decide on his intent to go back because the allegation in the complaint was he is a mentally impaired in the amended complaint a mental impairment that requires this is eager to undertake all decisions on the plaintiffs by having apparently including the decision whether to go and whether or not he wants to go to the pub and i believe the court is looking at the amended complaint as opposed to the second amended can get the american plane in paragraph and said undertake all decisions plaintiffs that you know but that's not the that is not the complaint before this court the complaint before this court says some decisions well but the judge didn't allow the second amended complaint right the second a minute complaint a motion for earlier filed a second a minute complaint i thought the second amendment complaint was not allowed second amended complaint was not allowed there's in the order i understand which is the is the is this appeal about that abuse of discretion and not allowing the second amended complaint abuse of discretion plus the court needs to look at to know whether that i was unwilling we don't have the money can buy before it is what you say it's in it's in the record i know it's in the record but what are we ruling on the motion for that that the mile of leave to amend the second amended complaint correct both that ok so that so we're looking at the second amended complaint at and it's a discretionary decision on the part of the court the district court it's not a date novel review i'm sorry i did not hear the last and what i'm saying is is that the issue before our court is whether the district court made a mistake in not allowing you to file a second amended complaint than the standard to review here is whether the district court abused its discretion and denying that leave to file a second amount of complaint right ok so that the sufficien amended complaint is irrelevant correct ok thank you down to tell us how the court abused its discretion it and not allowing the second amended complaint number one because it clarified that ms seeger only made some decisions for him for instance he may want to go somewhere but he needs her to transport him so when they go is dependent upon her time and availability to go to those locations in particular here it clarifies the issue of standing and that it is his decision his intent whether he wants to go when he goes is dependent upon his wife this is if i have to wait for when it arrives or when i get other assistance from under individuals to get transported to locations you have to fit within their schedule where the court made with a lower court made errors and lot is reaching back to the prior complaints that were not incorporated by reference and should not have been considered as far as the poor penmanship or the porche governorship of counsel who drafted as initial complaints because this individual should not be a shuttered individual he can original complaint it had sufficient standing doesn't matter that we're not passing on the original complaint or the amended complaint we're passing on the court's refusal to allow the se complaint my point is if it doesn't add a whit to what was already in the case then the court could not have possibly abused the scratch that's my view of that of letting you know  i understand let me ask you is it your position that the court abused its discretion because it found it would be because it effectively found that it would be futile to amend the complaint since there were these prior allegations that appeared to conflict with the allegations in the second amendment amended complaint yes i agree the court did and so your russian position is that because it if you look at soley to what was in the second amended complaint it the second amended complaint in of itself in a vacuum and without looking at anything else would not have been futile because it sufficiently alleged facts that would allow for standing that as a matter of law  finding a sensually that amending the complaint would be futile the district court abused its discretion is that what your argument has yes it is ok so why couldn't the district court take into account i mean the district court had a hearing where mrs seeger testify and there were these two prior pleadings why couldn't the district court take those facts into account when it ruled on the motion to amend you know to file the second amended complaint when number one there was insufficient facts you had a note from a doctor talking about his competency there is a lot of folks out there incompetent to handle their financial affairs and should be found incompetent for those purposes or make decisions on whether or not a settlement should be reached so you know for those reasons and i understand that was short on time here i've asked the court to reverse remand with directions to the could kind of go through my thought process is having difficulty saying what was added of any legal significance to the second of my the complaint you follow me i think i do that changed anything for legal to do good yes yes or if i could and even though i've been doing this for some time i have to admit i've had a lot of thoughts in how to respond to this particular case and some of its root was reflected in what the courts comments at the end thus far additionally i looked at it and said well clearly they twice pled themselves out of standing by saying all decisions had to be made by the white he was not capable of making any decisions on his own and then i understand when they filed the amended complaint i started thinking about well maybe it's only whether doubt there was a piece of discretion not to allow that  of course there was never a proceeding to make her next friend under under rule seventeen of the federal rules of civil procedure when we got to the second amended complaint that was the right to do that was  denied and i did address the issue within the second about the complaint and for what it's worth i thought about say we don't get there it's just abuse of discretion i shouldn't advise that but we've had discussion about what's in that complaint and the only difference is will take him to the west then determines whether or not you can possibly go that well let me ask you this it seems to me that under the second amended complaint he might have standing i'm not going to commit to a position at this point but it seems like he might if he did have standing under the second amended complaint and the reason why the district court did not allow the second amendment amended complaint could be boiled down to a determination of futility then wouldn't that be an error of law and as an error of law wouldn't it be an abuse of discretion that's the first question and the second question is if so and i think you were getting to the point was there another point that you wanted to argue about why it wasn't an maybe you add new theories in what you don't do is say it was black before now it's what except that here's the here's my concern about that there was a hearing and mrs seeger did testify and when she testified i don't i think the way she testified was consistent with what is alleged in the second amended complaint in other words she said he's forgetful about things and that's the kind of dementia he has but he's capable of making decisions he tells me what he wants and when the doctor said that he's not competent to handle his personal affairs that doctor is a doctor and he was speaking loosely and what he really meant was he's not capable of handling his legal affairs so all of that seems to me to be consistent with what she alleged in the second amended complaint so i need you to tell me how it's inconsistent and why it is that the second amended complaint allegations necessarily conflict with what came before why can't they be read in harmony you understand what i'm saying though i understand exactly what you're saying you're out of it i also understand potentially  think what what is happening in the second amended complaint i think things are getting sliced too thin at what point is there competence at what point can there be an allegation of the injury in fact that we're not going from previously saying he's incompetent to go there he can't make any decisions any decisions on his own to knowledge there's a he can make some decisions on his own he can make the decision but it's a conditional the scenario but is the count it is the original complaint and the first amended complaint got into in the briefs for purposes of emotions and then asking you what your position is are we are we limited solely to the four corners of the complaint for purposes of evaluating these complaints and of course the law traditionally well there it is it really doesn't matter in deciding whether there's an abuse of discretion i speak for myself it doesn't matter whether the for the complaint was problem and i'll mention it now because i think their colleague needs did answer it there is an allegation that he's a tester and that's why the suits being brought and he's asserting his civil rights can even possibly be a tester and understand what the civil rights are of that tells me he may go down the street to every establishment that won't admit somebody in a wheelchair and say i want to go in there that test by the civil rights i can't reconcile that with somebody who's incapable of making a decision hornets not an appeal of the amended complaint and also a challenge to failure to leave to amend and casey and the amended complaint is insufficient correct i think both issues are essentially before this court i mean you think she's appealed the sat the amended complaint that's not what their argument was the argument was or is th i agree your honor that the second amanda complaint we think adds nothing because it still is insufficient we do think the second american plate the question is whether that's anything of legal significance to the complaint that was no good we don't think it does under an analysis that i probably should have thought about while reading the pleadings and research and initially but when we get to the issue of standing in cases like  this court's case about the demonstrations in texas there gets to be an issue when saying i intend to do this in the future the question of whether or not i'm going to do it in the future seems to be able to formulate that there are too many preconditions it's like a chain of causation that's two to attenuated or extended for want of a nail the kingdom is lost kind of an analysis because for him to have that intent or to come close to the intent he's saying if if my physical health permits and if my mental health permits and if my wife will take make then i'd intended to go there at some point if not for the purpose for the purpose of challenging the sufficiency of the establishment to satisfy the law yes in and terms of an accommodating my disability and i didn't really address the dracs directly the fact that he's also putting and he can make the decision to go if his physical and mental health permits and his wife would take him and despite plaintiff's disability on most occasions he's still able to arc articulate his views and thoughts speak fluently and formulate an but also to assure himself that the subject premises is in compliance with the eighty eight cetera so why is that not sufficient to establish standing on that and is that sufficient we think not so really at a guess getting back to the first question i asked when the opposing counsel came up this is really a case about it's not a case about a legal principle a great i mean i guess it is in the sense of whether it's enough to it makes standing but it's not a question of whether or not an individual with a certain type of mental disability can bring in a decent i agree it's specific to these facts and in trying to talk about slicing how much do you have to have to be able to allege standing i don't think we quite get there with with this particular appeal but in terms of the allegations we think that they have failed well the ploughs ability of the whole that it is plausible that somebody knows about their civil rights and accommodations and this has to be done and that has to be  a little curious and like that on the issue of futility i'm going to telescope ahead to the trial the plaintiff's burden would be what and how would the plane of satisfy his burden if he couldn't testify competently i didn't say you couldn't testify competently ok so i think the court below and it should be cautiously looked at here overread the doctor's note that said he was incompetent to take care of his personal affairs i have had individuals that i've encountered had strokes and had a facia and a new inability to speak but it didn't mean i didn't want to go to the store it didn't mean that they didn't  so i'm not sure i agree with you docket entry twenty nine there's an affidavit in the record by mr seeger himself where he utters that he had the desire to go back to the  facility councils in artful scrivener should strip of the prior complaint in which it inaccurately stated that she had to make all decisions on his behalf is not something that council should be prohibited from correcting i think counsel played it that way probably because they were trying to satisfy the next friend status so just in case mr segar had one of those days where the inflammation in his brain was higher so he couldn't articulate it in court that she could convey with her testimony with other people's testimony at at a trial over a future evidentiary hearing asthma seeker did she said he felt he wants to go he shouldn't be required to stay in his room locked up despite having a desire to go places and do things merely because she has to testify that day so she did testify that he had the capacity to want to do things so direct the court to look at the affidavit if it's going to look outside the four corners of the pleadings look at the court's prior opinions and in matters such as this where  such as and high straying pieces j p morgan chase and bank at eight forty five federal third ten eighty seven and which the court found that disability should not be penalize for the poor penmanship of counsel a claim has been stated he has standing has desire to go places to go out and not be shuttered in a room and not be