thank you i'm kevin brown letter i'm arguing today on behalf of the defendant appellants and i reserve five minutes of my time about this is an appeal from the denial of the defendant's renewed motions requesting arbitration that the instead they've chosen to sue some of the banks in the chain that process the automated clearinghouse transfers that moved the money between the lenders and the plaintiffs bank accounts now many of the loan agreements like the ones at issue here today have arbitration provisions and for that reason of the twelve cases every single one except this one has been sent to arbitration already or voluntarily dismissed we believe to avoid an order compelling arbitration because the federal arbitration act requires the procedure that we're requesting today and let me just put that in context your honor when we filed our first arbitration motions at the very outset of the case we simply attached mr dylan's loan agreements to the motion papers at that time we didn't have authenticating affidavit why not your honor we didn't have them because they simply were not available at the time  is that we're a little bit at the mercy of these third parties that the tribal lenders to authenticate them now the lenders you know we don't have control over them there was evidence below that defendant the mo harris had presented that could have your honor i agree it is theoretically possible that they could have responded to subpoena but there was every reason to believe that they would not look because underlying both my colleague's questions is sort of the broader question under your theory level of gamesmanship that we would ordinarily find you permissible i think that's the concern or it's my concern i agree at a very much with the district court's concern but i believe that the concern is misplaced here because our position which is the same juncture and if that's fact or if if you're going to address that you need to speak to my previous question please feel free to respond to it in that context yes i apologize your honor yes what's should happen the third circuit explains is that extensively on the loan agreements we thought that that meant under federal civil procedure tend see that that doctor was going to be incorporated by reference into the pleadings and so it would be fair game on now mr dylan never concluded below that either it can't be resolved in the puttings or if there's a dispute of some kind about the existence of the authenticity the formation of the arbitration agreement here's what the third circuit said it said that the motion to compel arbitration exactly what we try to do and that's what every other district court except this one has done in this situation to our knowledge no other court has ever subjected a second motion to compel arbitration to a stricter heightened reconsideration standard i'm not sure that you answered judge tokens question which is significant to me to whether arbitration agreement was authentic and judge did not decide whether it was or it was not authentic in fact it's quite clear from judge eagle second order that she believes that the rule that the arbitration agreements are authentic because the final footnote in her opinion could be used for any other purpose in the case so what i'm trying to get at your honor but the third circuit make clear is that the defense the proponent of arbitration has one shot if the first motion h and that would be something that judge ito should we believe should consider henri manned but ultimately the purposes of the federal arbitration act also make clear that our procedure that we're requesting it is required the supreme court's make clear that the purpose of the federal arbitration act is to move parties to an arbor triple dispute out of court and into arbitration as quickly and easily as possible those are the supreme court's words and most sh come it would only make the fact that the district court treated the of civil procedure fifty four b to impose a heightened reconsideration standard doesn't it make a difference in that it became it became relevant for purposes of a motion for reconsideration whether or not the evidence was previously unavailable but whether whether there was a reasonable opportunity for you to have had the information in time when well if the reconsideration standard really does apply i would make and that was really the basis of my question doesn't make a difference for that reason oh  think i miss i'm sorry i misunderstood your first question because i believe there's a threshold question of red whether that reconsideration standard really does apply and i think it is not the federal arbitration act and the third circuit all the other courts to consider and have concluded that it does not apply and orders at any time before final judgment and this court explain to the american canoe decision that when like here if the question at hand  resolve arbitration issues on the puttings when it appears that that's a possibility they didn't get right back to to the question that the court was asking first and that is it can be more efficient to have multiple renewed motions to compel arbitration each one being slightly more heavily supported evidential in the evidentiary sense than the previous one so you're correct but that's not there for supp the process that we are asking for the third circuit set up there is there is what you file your first motion if there's a dispute then there's a factual development followed by one more motion and at that point that's what i'm asking because i'm sorry because section four of the f a a makes clear that once there's makes clear that the if there is still a dispute you're supposed to go directly to tr reason the judge ignored the undisputed showing that the lenders could have invoked tribal sovereign immunity now it is theoretically possible that they could have not been to their advantage not to well i'm not so it's a strategic decisions in litigation i'm not sure that it's it would that they made abundantly clear to us that they would not comply and they were with perhaps understandable reasons not eager to get involved in the case because after all  plaintiff in the case is accusing them of of having committed crimes but also this court has reiterated time and again that there's supposed to be a heavy presumption against waves were to fall for the  with this court's decisions now ultimately since the purpose of the f a a is not to is the supreme court said in the american express decision it's not to impose preliminary litigating hurdles on the party seeking arbitration it's instead to make it as easy as possible to get into arbitration out of court it would be far more efficient to allow parties if there's a good faith argument that it be done simply on the pleadings this is after all of the very out of the case before any discovery let them take their shot like the third circuit says  because otherwise what will happen if the proponent of arbitration has to dig up every last iota of evidence in favor of arbitration without first initial motion at the outset of the case the parties resources would be wasted with very expensive and that fashion if this case if you affirmed then this case would proceed on remand and the district court and the consequence would be to it would be the only one that would proceed in a litigation for question on the standard and i think it incorporates a little bit the question on the signature and i think the principle is the banks have conflated the proof of a you writing with an arbitration provision and the existence of an agreement to arbitrate under that writing to do you challenge the existence of green because to arbitrate has your client ever challenge the existence of yes we have in the responses to the motion to compel we raised the fact that this writing was not authentic eight and that's the standard we're talking about before you can invoke is that you son isn't it part of the loan agreements about which your litigation rests on which your litigation rest you can't be you're going to use those loan agreements i don't know the answer to that question why are they throughout your complaint then well here's the answer to that mr dylan took out a number of things like a lot of these folks who get trapped in a debt it's happened in cyberspace somewhere and the example i used with judge eagles was there was one lender called vin capital we have no idea where they exist there are often cyberspace mr dylan doesn't have the loan agreement he doesn't know if that loan agreement that the bank has brought on behalf of in capital is the loan when we drafted the complaint we went to his bank branch and it showed that this bank had put five hundred dollars in his account and they made certain debits from his account and that totaled up to an a p r in excess of north carolina state law so the claim that mr dillon is one of the signatories is in the best position to say yes this or  authenticated writing is the one that applies to my love who knows maybe it is maybe it isn't but i don't understand your answer ok well let me try again i guess what we're saying is if this ha introduced it's not incumbent on the other party to concede it we can say we want you to establish that this is in fact the writing with the arbitration agreement that applies because these again are non signatories it's unlike any other case out there the banks are complete strangers to the transaction mr dylan doesn't have several of these that everyman's and and so he's not in a position to say yes in fact this is the loan agreement or no it's not so what we do is we put the party seeking to move the case out of federal court and into arbitration to the burden of establishing that it's a genuine and authentic  document that answered your question i feel like it hasn't so so is is this case in north carolina and eight you've had these lawsuits across the country is this one the only one in which you challenge the authenticity of the arbitration agreement in some of the other cases that challenge wasn't made and there was no dispute so is this the only one in which you challenge the authenticity of the but what the other courts did was they didn't have this issue before them and some of them point out there's no challenge to the authenticity and some of those cases we've moved to reopen the case so i think the distinguishing principle here is well what was the discretion of the judge well the judge has the discretion to manage proceedings and can decide when to hear motions and when not to revisit decisions that are already made that that's the limiting principle it's the judge's discretion to manage the docket and of course the renewed motions for me for arbitration those happen all the time but they always happen when there is something else in each of the cases there's more discovery or the judge invites briefing here the threshold wasn't met to a stablished that there's even a writing with an arbitration provision in it and if that was wrong because that's what judge still  i think that gets to what i heard my counsel make comments about section four this idea that if there is a dispute about the existence of an agreement to arbitrate you do need to proceed to some early results that have been in order to determine whether there's a dispute about the existence of agreement to arbitrate you need to know under what writing are you talking about for example in the next but apparently that is what that's what the banks were trying to deal with the second motion to compel exactly and that's what i think the facts do matter so what do we have what was judge dillon presented with she was presented with the table see isn't it what was judge eagles presented with she was presented with a motion to compel and an authenticated documents briefing that raised the challenge to authenticity and then the response of briefing from the folks moving to compel saying you know what that's affidavits and some documents but i think the point that distinguishes this case is they asked judge dillon scott to ask judge eagles to decide the case on the box of evidence they brought to or they didn't say like many of these other cases we need more time let's do discovery they said here's what we want you to decide the case on here's the motion under the new motion to no on the original much are we dealing with a renewed motion to compel that we understand what happened with respect to go but in approaching the court with a renewed motion to compel it appears that the bank secured the evidentiary deficiency that had been identified and and that is where the judge's discretion comes in to say what is this renewed motion is it like the other cases sprinkled in the briefs some something more you do have the discretion to take up a decision of an earlier order of the district court can do that but it's not automatic they also have the discretion to say you know what this is simply a request for me to redo what i did before and everything you're bringing is not new evidence there is no change in the law but that's only if you do treat it as a to me at the very least the district court has to consider whether or not the standards that she applied under the misconception that she was dealing with a motion for reconsideration apply in the context of this of a motion to compel arbitration i would agree with that and i would say that it is with the only did you do i would say it's with you know we send it back to the district court to to revisit what's she gets the label correct though the labeling i think doesn't matter it's the principle of the judge matter because the that she a the district court applied a heightened standard in considering this is a motion for reconsideration rather than as judge duncan indicates what it was what it was a motion to compel arbitration and i think what the distinction is is and the cases i think all support it that if you have and it's just based on the judge's discretion if you have a motion this decided and then more things happen in a motion on the a heightened standard of a motion for reconsideration was the evidence previously available whereas if you treat it as what it was labeled and their idea is a renewed motion to compel arbitration the standard the standard is different it's lower so why would we and i think it one point you seem to be agreeing with me why would we not at the very least have to send this back to the district court to get the analysis right well i agree that what you've laid out there is what they did they labeled it as a renewed motion ok and i agree that if it was a renewed motion that occurred as in these other cases later when there was a change in circumstances there would be a different standard to look at it but when it is simply a request to redo what was done before the judge can treat it as a motion for reconsideration so simply labeling it as what is your best case law support for applying the reconsideration standard to and arbitration to compel scenario so i think the best is the case from the first circuits kazi vs networks associate case very similar to those there were because the two agreements one was arbitration or no later without the plaintiff brought the claim under the second agreement without arbitration in the defendant argued that it was awful including the first the judge heard the motion to compel him to not the case went on later the defendant refile the motion and the judge looked at it and said you know it's not new evidence right that the court was address motions to compel arbitration or to some extent favor because if the parties have agreed to arbitrate the federal courts have come out very strongly it's a should be permitted to do so so motion to reconsider it was displayed for when the federal reserve's prisms arbitration is not the same and the distinction i would make is i would argue that those policies and  policies under the federal arbitration and favor arbitration and quickly move things out of litigation and arbitration none of those are invoked until a party first establishes that there is a writing with an arbitration most the second motion to compel so it sort of goes in circles that's exactly what they were what the banks were fifteen to do in that second motion to compel is to address the question that you raised of authentication so let me ask a slightly different question can you give can you identify for us how can you identify how  cited in the briefs where the court looks at prejudice from that briefing cross so the prejudice and just drug dealing mentions it in her in her order as well that the prejudice to him would come from having  litigation process but here you have the banks trying pretty diligently to get out of arbitration out of litigation and into the arbitration context you know i guess i might disagree with how diligent that was what we know is i was put on notice and had some to see actually for the purposes of my question and focus on the real news motion to compel arbitration because that's really what's the only thing that's before us right and what i can say about that is i think what the district court has is the discretion however that motions labeled to treated under the well settled law of the circuit on fifty four b is law but and there's nothing in the f a a that compels otherwise so that that is you know the best i can answer that in i think the facts do matter in the fact that as to one of the banks be among we know something about why they claim they couldn't get the evidence the first time as to the other two banks it is silent so you know our answer is it is appropriately treated as a motion for reconsideration and there's no appellate jurisdiction for that under sixteen a and i think looking at sixteen a supports that it talks about an appeal from an quarter seeking a stay under section three and what judge equals order the second one the motion for reconsideration was was just that it was a denial of the motion a denial of the decision to revisit the earlier order federal rule of appellate procedure for treats those differently they don't told the time at all and in this case we would suggest that that it can be resolved decision that there was no abuse of discretion in determining the evidence that was brought to second time wasn't new and i think there's simply no evidence in this case that any of the fifty four b requirements were m so i would make that distinction that the district court has that discretion to treat it and that's the limiting principle could there be renewed motions yes in the district court can look at that and  take those up again within the discretion of the district court in managing its proceedings the good id case in the third circuit that was referenced by counsel i think there's some distinctions again it was to si there was no dispute that there was a writing before the court that contained an arbitration provision there was a dispute about whether the with the arbitration document was later delivered so that was getting to the existence of an agreement to arbitrate and takes you down the path of section four world court has to summarily resolve that you know all don't want to restate it too many times but we feel that we haven't got to the section four point because they never in this case establish an authentic agreement and have that properly before the court and i think thinking about what would have happened if judge dylan had granted some i mean where are we then so mr dylan's case goes to arbitration his constitutional right to a jury trial in the federal courts has been removed on what basis on the basis that these may be the documents that apply and it's especially suspect here where you don't have signatories like in almost every other case in the brief it's a homeowner in a contractor it's an employee and an employer there's no dispute that the agreement is the agreement there is simply a dispute about agreement to arbitrate under that writing that's been established so i can see that your concern is well why didn't they just have it good enough the second time we've now got it all before the court and is it a harsh result to simply say you didn't get it right the first time well you know we will probably try this case i hope and i may try and introduce some evidence and the judge may say you didn't lay a foundation for and i may lose the case but my answer can't be well maybe i would have done some discovery but i didn't think it would work when that that's what the position the banks are taking they didn't invoke any of the tools under the civil procedure rules to get the right evidence they didn't ask the judge for more time they didn't suggest in any way that the judge should proceed other than to decide on the box of information she was presented and in fact that's what they asked for and later there are the affidavits were produced and you know i think that shows that certainly with diligence they could have been obtained the first time so the principle certainly is the one that the first circuit said and i this this panel has mentioned which is there's just no mr rana thank you very much i just want to clarify or unfortunate correct one thing that's what my colleague had said and then turned back and hopefully i give you the answer that you were looking for now i believe that my my colleague was hearsay unless there's an authenticating affidavit and if i think it's abundantly clear that they really were his arbitration agreements now second i believe the court was concerned you know what's the limiting principle here or how many times you get to go back but the principle is you get you get a ruling on the merits of your arbitration defense and the supreme court addressed your concern about abusive serial arbitration provisions in a very similar context in the arthur andersen case because they are the concern was of third party going to bring a series of abusive third party you know arbitration motions what's going to stop that and the supreme courts have looked that parade of horribles from the requirements of the f a a which every other court in the situation has understood now finally even if even if this case really is that the renewed motions really were subject to the reconsideration motion this case still needs to be remanded not only to consider the new evidence because it qualifies as new evidence and what constitutes due diligence to do what's necessary you should have to embark upon years potentially of third party discovery that might perhaps be a necessary due diligence should require that kind of scorched earth ation and your honor if you asked him how do you know that those those tribal lenders would have just you know responded to the subpoenas they're fighting your honor tooth and nail to vindicate their tribal sovereignty unity and in fact one of the tribes in this case is involved right now in proceedings in the second circuit which has now gone on for over two years on that issue with no resolution i just don't believe that it makes sense for this initial arbitration motion which is supposed to be resolved easily get bogged down in you know two years of finding out that  and then have a brief