the law regarding that and what the situation was i mean there is no good no doubt that a motion to compel arbitration was filed in service of timing seventeen months or whatever the court observed in into the case but the case law is clear that let alone is not a fact and it's not sufficient to deny it we did file a motion to dismiss at the beginning of the case we think it's important to focus in on what type of motion that was and then also under this court's dumont standard and maybe i mean our cases that we would hope the court would focus on would be demat nabi have freight and then distinguishing hooper to me that seems to be the situation that we're we're faced the marriage because for the motion has several grounds the st ground and primary overwhelming person have it was partial jurisdiction which is a well recognized basis for not having a marriage based decision the  driver for us in filing it was that there's a footnote in the complaint that says the consumer protection laws of forty seven dollars states are being in vote and then we did file what we would call to be six motions directed at the pleadings and all of those were i think cips subject to replating at the end of the day you know rule twelve does say if you file one motion which we had to file for personal jurisdiction our way you should bring your other issues in the same motion and so declaratory judgment in their motion to dismiss so the court will not address that and we did not mention that so i think that that's a point that under the case law could be relevant to the court the other point it being is all of these pleading defects are ones that are cured by amendment in fact we have two or three to two different discovery hearings but in one the plaintiff's point in response to us was judge this motion isn't the kind of motion that gets rid of the whole case and three or four different t once we were over i mean speaking as a person who filed a motion i was extremely focused on not having a nationwide class and thinking that that was you know without merit or in our view frivolous i know the other side is a different perspective but once you file your rule twelve question how to dachau the cube as sort of an introductory question and i'm wondering as we add case the other gave presenting a similar waiver issue and we obviously didn't sign these consistently with each other and you obviously weren't the attorney in that case but that i get my perspective on the issue even though it's not very fair anything that's been talked about the case law to me in the a circuit seems fairly solid that the district court looks at whether litigation related conduct amounted to a waiver and i would distinguish between you know two types of waivers litigation conduct waivers and then perhaps other types of waivers arbitration that might come up and i think that your law to me is fairly uniform that the for by litigation conduct is decided by the district court and i have a trans america would be a slightly distinguishable from that in the sense that it related to i think a different form of waiver so we did not  arbitrator deciding so what i'd like to focus on the st element that we can test which is the substantial machinery element we have a few  does the motion eliminate frivolous claims and clean up the issues that might have to be arbitrate here it's clearly yes after all this time the plaintiff dropped forty nine states allegation against us without even asserting that it was right there they dropped the claims on the consumer protection laws of forty seven hit states and dropped another subsidy account to the defendant in both the litigation machinery of discovery through deposition we served no discovery and took no depositions and objected even to  discovery that was again if you look at hooper do we do issues of st impression that were difficult for the court no we argued bristol myers for the most part of them straightforward pleading do we file the lawsuit even  held you could arbitrate even after filing a lawsuit does our motion to dismiss eliminate the entire case and the answer to that was no as we've just discussed in response to judge smith's and then what was the cause of the delay and i think this is extremely important because the case law is clear that you have to look at what every case is different every case is decided on its own facts what's the cause of delay because of the delay here was a request for jurisdictional discovery by the pla f think the court is well familiar with bristol myers and the issue of whether out of state people can come into a state that is not the defendant's home and sue them there over unrelated conduct to the form so we were sued in missouri for people all over the country we said we're not at home in missouri it's crystal clear that you can't bring these cases and they said that they want to discovery and there was no discovery that could possibly change that our headquarters as i'm sure just means is well aware our headquarters are dark and so we make our decisions in arkansas we were at home in arkansas for purposes of that but we objected to the discovery but they were allowed to do discovery and it didn't change a single thing we are at home in arkansas they did get to take their deposition and get a few documents but what they did in that is go from october th two thousand and eighteen to june th of two thousand and nineteen and seek extensions of time to do that discovery none of which they used they abandon entirely that argument as prevalent in judge judge phillips to dispose of it in a footnote saying they don't even contest it and that is the overwhelming cost the overwhelming delay all of it on  required to under the law and we think not and during this delay we would say is eight months where we were confused about what was happening we now know what was happening which is they found twenty nine dollars plaintiffs and sued us in arkansas with overlapping case we're in a state where we are home and so the foster case which we just argued the foster plaintiff is a missouri plaintiff the foster plaintiff the leap plaintiff in the case is from missouri and kansas city and so what they've done is use the time that they got to try to show that we were at home in missouri apparently but actually developed in this foster case and so we have a lot of issues with form here in foster is not the only one because we know also that the same gift cards were at issue in a prior class action for arrest and that was filed in green county in february of two thousand and eighteen so when we talk about delay we know that from february of eighteen they filed their case on the same gift cards as we know in state court you get a change of judge they took their change of judge they got a new judge they then decided to sue us and mccoy in june so there's six months of delay for president well they're just as far as we can surely for him deciding then we can serve him mccoy and we get all this discovery that's happening where we don't quite understand the purpose but at the end of that what happens is we get hit with a nationwide class action that's overlapping in arkansas and so we just don't think that this is a case where we're responsible for the delay the delay is clearly to me pressed in six months while they decided whether they like what was going on in green county then they sue us and they say they want to scupper e and then they delay from october t th and then they file us against us in arkansas and so this is a extremely unique case an extremely unique case because of the competing overlapping repetitive class actions both before our case and after our case and judgment to your question about about could we have moved the answer is yes but once we got the ruling that said that all of these fifty states are not at issue and once we realized that we now had the jurisdictional issue resolved and now we're getting to the merits because we don't have that argument in arkansas we then immediately file i mean i would say immediately very shortly thereafter filed for arbitration so turning to the prejudice component this court has two big decisions on standards and that stiefel and kelly kelly is what gets phillips cited and steeples what we started in our brief when they look to prejudice they look to a few things they talk about the idea of lost evidence there's no lost evidence they talk about whether we're going to have to duplicate litigation there's no duplication required we didn't get into them merits at all they look at whether you litigated substantial issues on the merits we did not get into the merits of the case at all we didn't even take any discovery and then what is the cause of the delay in the expense and here as i cover because of the delay in the expense was this discovery that they wanted to take that they ended up not using and so with that in mind we would say that under these unique facts there is no substantial invocation of the machinery and we would refer the court to be afraid and to mock for that and then that there is no prejudice under the standards set forth in stiefel and it makes no sense to have a case pending in the western district of missouri springfield that has a direct overlapping class action by the same lawyer stories in the same issue in arkansas so i did research lessers additional question i'll reserve my time to go see  good morning your honour's donald brown for the plaintiffs in this case and may it please the court before i jump in from the beginning i want to make sure that i address some of the items that were directly discussed in the  arguments your honor the st item i want to make sure the court is aware of is that this district court order disallowing the motion to compel arbitration was ruled on  twenty they gave us requests for admissions request for production of documents and in iraq the tories all directed towards the merits of the litigation so i think that it's a slight bit disingenuous for them to say that anything other than jurisdictional discovery was was ever entered into in this case and that simply is not the case counsel for wal mart also mentioned count nine amended complaint your hono s count nine was a count for declaratory judgment the plaintiff in our case acknowledged that the back of these cards referenced terms and conditions and that part of those terms and conditions were so that nobody could what basically it would limit wal mart's liability for for for their conduct and we were seeing a big a declaration from the district court that  these liability these liability limitations that wal mart sought to impose were not enforceable wal mart claims that they did not try to dismiss count nine or seek to dis where section c and there's suggestions as part of their motion to dismiss was that every single count the plaintiffs a minute complaint should be dismissed because wal mart quote cannot be held liable for criminal theft committed by rd parties that was an overriding merits based argument for which they tried to get rid of the entire case and the district court's order denying their motion to compel arbitration and this is that the defendant's appendix page three hundred and twenty your honour's the court makes specific note that the wal mart motion to dismiss tried to dismiss all claims for wal mart liability based on actions of rd parties because wal mart cannot be held liable for theft committed by rd parties now what i can't do is reconcile that with admittedly the court also saying that because the parties didn't specifically address count nine she'd that the judge did not specifically address count nine whenever she denied the motion to deny the motion to dismiss i'm sorry owners but that doesn't change the fact that wal mart tried to dismiss count nine by an overreaching argument that the rd party liability protection that they alleged should have every single claim dismissed to the extent the judge simply didn't touch on that argument i think there's no choice but to assume that the judge did not think that argument carried the water for the day and the judge disregarded that argument so wal mart i don't think can genuinely claim that they did not try on the merits to get rid of every single claim in this petition additionally the other merits based arguments that wal mart made throughout their motion to dismiss they argued that missouri law does not permit a store operator to be liable for acts of rd parties they argued that missouri law refuses to hold defendants liable for criminal acts of rd parties they argued that missouri's economic loss doctrine barred plainness misrepresentation and fraud cants as to the breach of implied warranty of merchantability claims they argue dismissal was appropriate under missouri law because the cards were fit for their ordinary purpose for two days before the alleged efficiency as to the unjust enrichment claims wal mart argued that missouri law barred the claims because missouri pled the existence of an express contract and so wal mart repeatedly to dismiss this and amended complaint in its entirety yes there were some jurisdictional grounds and but those were basically for the purpose of getting rid of the missouri plaintiffs and they were successful in doing that but that doesn't change the fact that they the vast majority their motion to dismiss was aimed at getting rid of the complaint in its entirety and on the merits and i do apologize for harping on that your honour's but i think that's extremely important in addition to the motion to dismiss  well let me back up a little bit your honor there was more than one motion to dismiss in this case again the initial complaint was after it was removed a federal court was followed very quickly plaintiff relied on those motions to dismiss and took the opportunity to refine their complaint and filed the amended complaint subsequently the nd as a rd motion to dismiss was filed and that's the one that was litigated to its conclusion and it is the district court correctly found i believe that that the litigation on the motion to dismiss was not merely trivial it was prejudice to you to enforce the arbitration at this point yes your honor not surprisingly i prefer very much the eight circuits few unprejudice parties litigate substantial issues on the merits or when compelling arbitration would require a duplications of efforts so in the th circuit the mere fact that wal mart tried this entire motion to dismiss on its merits to conclusion without ever mentioning arbitration one time is enough to presume prejudice to the plaintiff there is a case your hon it's the wheeling hospital incorporated case that the that wal mart sides are stating that this court should use a much higher standard going back to hooper your honor which we believe is the is obviously  the controlling case on this who for restates the eight circuits opinion that read that the prejudice threshold is not onerous and hooper case they said there does need to be some some evidence of prejudice but not that much the well mark what have the courts follow the th circuit's president in the wheeler case where they require a substantial showing of prejudice of actual prejudice before they are going to rule on the issue of waiver in favor of the party seeking the waiver or fact in the hoop or in the th circuit wheeling case itself the th circuit says although some of our sister circuits have held that the nonmoving party is prejudiced when the party seeking to arbitrate litigate substantial issues on the we have never adopted that position and that's the th circuit talk and they specifically link to the th circuit whenever they say that they do not follow the th circuit standard when it comes to showing prejudice so i'm sorry if i'm rambling your honor but to answer your question i think that prejudice doesn't require much in a circuit and the fact that they won't mark litigated this motion to dismiss on the merits all the way to conclusion is enough by itself to show prejudice or your view may be that this isn't necessary but as i mentioned we've that at least two waiver cases this week and so i want to make sure i have it straight was there any thousand two hundred and fifty five dollars in attorney's fees at the attorney's contract rate and it would have been fifteen thousand four hundred and seventy two dollars in expenses your honor and that was in front of the court and in the record addressing another point d made by wal mart your honour's counsel for wal mart stated that this motion to dismiss that they filed was merely something to clean a clean up the case and by golly get it ready so they could move to arbitrate they claim that yes they had some twelve b six merits based motions in there or merits based arguments in there  but the procedures require them to do that they couldn't leave them out there's something else they couldn't leave out your honor but they did and that was putting the planet on notice that they intended to require arbitration there is nothing that wal mart did from the beginning of this case to when they filed their and mended answer well after the merits based motion to dismiss was adjudicated that they ever intended to seek arbitration so they were keenly aware that they needed to file a real twelve d b six motion but yet they were keenly aware that they needed to preserve the arbitration argument that is also defined in terms of claims made so really your honor the only thing that was really taken away was was count eight which was for conversion  dismissed i believe the plane was voluntarily dismissed counts two and seven but the only count that the court took away was count eight for conversion now they did take away all of the non missouri plaintiffs  which is exactly why the plaintiffs filed the separate count in arkansas and i think it needs to be noted that the the the sister case that you guys are deciding today and the foster decision was filed after the court ruled on its motion on the wal mart motion to just dismiss and the non missouri plaintiffs were taken away so after that the arkansas  the wheeler case the plaintiffs rely heavily dumont and the a b s brakes systems case though both of those cases are are highly distinguishable from the case we have before you today on the demat decision owners the court found that the defendant filed its motion to dismiss on jurisdictional and quasi grounds also the defendant in that case offered an express warning that it would seek a motion to compel arbitration on its as part of its motion to dismiss that did not happen here your honour's also in the a b s right systems case that case dealt solely with issues of contract formation and standing and there was  well i guess i'm out of time your honor so if there's any questions i'm happy to answer him but thank you for your time and considering this case filed until june and you can see in the docket which is of course the st part of the appendix that we didn't even do rule twenty six disclosures before them when you look at the appendix twelve which you can see that as the judge st rules on the motion we amended and added arbitration and then we filed right away so there was no assertion at the beginning of the case and in fact cooper says that's a negative if you put it in there and do that so we move as soon as we answered that we didn't have to answer for a long time and the reason we didn't have the answer for a long time goes to essentially my core argument which is all of this delay from october all the way to june and then tossed when we lost was because the plaintiffs claim they want to discovery on a jurisdictional point that was so problems that they abandoned it completely and instead used the time to find the twenty nine plaintiffs that students in arkansas the idea of attorney's fees goes to that to judge strauss which is yes they said they had  hundred and sixty three thousand dollars which they said quote for the district court litigation but what the case law requires is that it has to be stuff that we required they did their depositions on jurisdiction and i'll post ins about discovery injuries diction and then totally abandoned it we did not do that we did not serve that discovery we did not participate in it we did not take a deposition all we did was file a motion that was from my perspective as a person file and directed eliminating forty nine states that were outside of it and to go to judge smith question there was there was a very good thing that came out of that which was the case was defined to be just missouri and once it was so to find and the