good morning may please the court counsel my name is jamie neal and i'm pleased to be here representing the appellant's d n a and timothy burke keen in their claims against general motors i'd like to reserve three minutes rebuttal your honor that underlying case here arises from a motor vehicle accident that happened on a snowy bridge in kentucky and that caused significant injuries to began a burkean this appeal however arises from the district courts dismissal as a matter of law of the burkean state law product liability claims against general motors and despite the fact that this case arises from a motion to dismiss its tenders primarily on issues of fact there are basically two issues before this court today first whether the bernstein's first complaint against general motors pled sufficient facts to pla product defect in the g m truck that d n i was driving at the time of the rock and it's a fairly straightforward fact that's alleged it is the location and placement of the dirang a component of the seat belt anchoring system in the headspace of the truck and whether it was also defective for failure to contain or be covered with any sort of absorbent material is that specified in the first complaint the first complaint explains what happens in the accident explains the d you are a in was what caused his injuries it is a i will i will say a short explanation of the facts it's one paragraph explaining that the dirang was i think that cause of action state law well your honor what i would say is that at this point were adamant that the motion to dismiss stage and the court should make reasonable inferences from trombley i mean novolog and you can't get away with just conclusions anymore you have the specific facts that support the conclusions and i just saw that first complaint is totally well there is in the actual claims portion i agree that it just lays out the elements of the claims but in those the claims portion of the complaint incorporates the factual portion of the complaint which does explain what happened in this accident  and what happens doesn't mean there's liability that's the problem you say well there's an accident and therefore there must be liability no that doesn't follow and i think what i would say your honor is i agree that is that is the current state of the law  and when we go back to those cases though and the cases from from this court interpret ing ball the purpose i read it what the supreme court was trying to do there is say there must be a way for the district courts to weed out completely meritless claims at the complaint stage and what the cases have said since then is that we're only trying to get rid of completely merest meritless claims so we have to look at it in the context of the case and that includes using common sense it includes the court the court using its own judicial knowledge making a reasonable inferences based on the specific facts that are presented the specific case that's presented and here i think the reasonable inference is this is eight requires a short and plain statement of the of the claim and the case law says that what what the complaint needs to do and i'm talking about post what the case what the complaint needs to do is allow the defendant to understand what the claims are and state a plausible claim and i think here g m has own pleadings its own motion to dismiss shows that it understood this was a product liability claim it understood that the bird teams weren't saying the truck rule fifty nine abuse of discretion yes i believe this court reviews the decision under rule fifty nine for abuse of discretion and what happened here is that general motors filed its motion to dismiss that was primarily focused on the statute of limitations g m threw in a couple barely a couple pages argument into that motion to dismiss that the facts in the complaint first complaint were not sufficient so they did raise the issue even if it's only two pages they did raise the issue and then they followed up in the their reply and specifically represented to the district court that they would not oppose an amendment if they were wrong on the statute of limitations which was the main issue and which the district court agreed with us on that they would not oppose any motion to amend but then after the district court did dismiss that case they did oppose our motion to him and essentially argue that we waited too long and if this guy it agrees with that then essentially what happens is every time a defendant files a motion to dismiss that even partially premised on factual insufficiency the plaintiff must immediately move to a man and or forever waive that right isn't that kind of standard practice that most litigators do that when faced with a motion to dismiss on under judgment i mean the timing here is just i think unbelievable but not file the motion to amend in opposition to the motion to dismiss on the police but you waited i mean there are several talked about sketched in the brief and what the court said there was that when plaintiff makes a request to amend that is a prompt effort to render remedy pleading deficiencies identified by the district court in the dismissal order as opposed to an effort to add new claims or a line here is that cases should be decided on their merits if possible the district court never ruled that the second amended complaint which was the first a substantive amendment as to general motors did not state possible claims g m has not argued to this district court so i cannot say from personal knowledge your firm counsel know your are right but but i want to tell them to put their legal malpractise curio on notice but your honor i think it's significant that g m specifically represented that they wouldn't oppose lead to a man and if the district court disagreed with their argument on the statute of limitations why wait till after judgments been honored ok because it's it's mind to me and i think it probably is legal practice ok help me out here if you can please understand eight months went by and then there's another period of time after the decision of the district judge to dismiss i take it there's no conversation going on between court and counsel are people only speaking through the motion practice and not having practical conversations among themselves because frankly there are a number of court where this procedure would not even  because there would be some conversation between the court and counsel are you aware of any conversation or is this speaking only done through the pleadings i believe here that the speaking was done through the pleadings your honor and everything was put on hold went to the most once the motion just miss was fully briefed then the scheduling order was put on hold essentially the case was put on hold and it took several months before that decision was rendered i'm not aware that there were i don't i'm fairly certain there was not a real argument for example i'm not aware of whether there were behind the scenes conversations going on and so unfortunately i can't speak to that i do know that the case was essentially put on hold is it fair to think that the dismissal with prejudice was a surprise yes your honor is there any indication in the record of why the district judge belvin ought to be with prejudice if there really is that your honor not that i'm aware of other than the ultimate order on the motion to man which says you can't meet the manifest injustice standard because we don't have to  and which i would say is inconsistent with the other cases from this district holding that leave to mention be granted this this type of circumstance and i see that i'm out of time now so unless there are other questions for  issue of whether the dismissal should have been without prejudice or with prejudice have you appealed that in your statement of issues i believe that's unclear if that order was specifically appealed was specifically the order that was appealed from and i believe that yes that was included in the statement of issues i don't have it right in front of i have your brief in front of me so you can tell me we are in your brief you have appealed that issue in your required denial of the motion to amend the order of order haven't appealed the alleged error of entering the dismissal with prejudice rather than without prejudice that's that's my understanding and i've read your brief and i don't see that you appeal that to us and we only decide issues least i do that our appeal to us and your shoes that could have been appealed might have been appealed should have been appealed are interesting but usually are cited as least decided by me well our intention your honor was to encompass that in the denial of the motion to amend the order dismissing and to the denial of the motion to amend the complaint so that that you had an adult role fifty not to mention even if you didn't do it so i should i should rule on your intention that's not before me that we have is that the argument i we have specifically arthur argued your honor that the district court erred by dismissing the complaint good morning your honor mark shuford i have the pleasure of representing general motors will see in this appeal i don't disagree with my co counsel that there are only two issues before the court but picking up where judge griffin left  off i think it is correct the plaintiff has not appealed the decision by judge stivers to dismiss the first amended complaint with prejudice the two issues on appeal are did the first amended complaint state a plausible claim of product liability against g m and the only other issue before this court on appeal is whether the district court of abused its discretion in denying the appellant's both rule fifty nine emotion and rule fifteen a motion there's no question about what the single paragraph of facts are that allegedly support the plaintiffs claim a product liability against g m in the first amended complaint it says simply that as a result of multiple sliding collisions with another vehicle a cover for the pickup truck breaking loose in intruding into the cab jackson case which opposing counsel's likes and it's being comparable your honor all of these cases are ones in which the plaintiffs at least went a layer deeper to suggest that a particular compound a particular component may have been defective the plaintiff herself suggests that there are ways in which a  manufacturers choices about whether to include a component in a vehicle what material is used for the component or even where to locate the component could in a proper case  be substantive basis for stating a plausible claim of product liability against the defendant unfortunately here the plaintiff didn't do any of those things the plaintiffs didn't allege that there was a defect in would argue that the plaintiff has preserved the error of a dismissal with prejudice versus one without prejudice although dismissals with prejudice on a on an initial amended complaint are infrequent  they are not unheard of and in fact if they were unheard of there wouldn't be so many cases for both appellants counsel and myself to have chosen from to point out to this court that it is a mixed bag so dismissals with prejudice dismissal with prejudice in this case under this scenario that were presented i will say general motors didn't move for the complaint to be dismissed with prejudice accu agreed according opposing counsel you have no objection to an a d complaint rather we invited them to file an amended complaint and in the eight months between when we filed our motion to dismiss and when this motion to dismiss was heard there was no activity on the part of the plaintiff to file an amended complaint in the motion and i take it to follow up on my question of opposing counsel there is no conversation going on by you with you with the court this is eight months waiting for the court to make a decision in fact your honor the scheduling order had been suspended the discovery had been suspended everything was held in abeyance ever absolutely nothing happened in that eight months other than that according to the plaintiff's rule fifteen motion somewhere during that time they went on the internet and found out some more about their claims and were able as a result of that to cobble together and amended a second amended complaint but only after judge stivers had already dismissed complaint which was woefully inadequate to state a claim in other words there was nothing this isn't a question of newly discovered evidence that the plaintiffs were suddenly able to put for the first time into a second amended complaint to get them across the line this information was available to them on the internet and frankly a vegetable to them before they found the original complaint and iraq to answer my question there is nothing in the record that would suggest the reason for not i just read their two issues it's not there but if if they had appealed issue i mean really the normal course of events would be to dismiss without prejudice rather with i mean this this is unusual is it not for twelve b six motion on the pleadings to dismiss it with prejudice if there's not a statute of limitations problem or or something else that would bar it i mean it's not not  usual remedy right again your honor i would say it's not usual but i would say it's infrequent which is to say the same thing it's not it's not typical and should not the judge give a good reason to dismiss it with with prejudice typically i think courts do and if if that had been preserved as an issue on appeal we might be arguing different issues your honor i acknowledge the judge stivers didn't indicate in his original opinion so the only way you can get a committed complaint i would think was if it's dismissed without prejudice if the dismissal is with prejudice it doesn't seem like an amended complaint would follow the total dismissal with pre after he had dismissed the amended complaint with prejudice the plaintiffs filed two motions within three weeks after the dismissal the first was a rule fifty nine motion asking the court to vacate amend or set aside its dismissal it then simultaneously filed a second motion to rule fifteen motion to set aside to amend the complaint to file an amended complaint the plaintiffs themselves  argue to judge timer's only one basis for setting aside his earlier dismissal of the full or grounds for granting or rule fifty nine motion they argued only one manifest in justice they made two arguments as to why it was manifestly unjust for the court not to set aside its earlier dismissal order the first was judge stivers you got it wrong the first time and as judge stivers correctly pointed out a rule fifty nine motion is not the proper time to simply really argue points you failed with the first time through fifty nine is not a substitute for a motion to reconsider so he not that aside their second argument was essentially look we've now got a second amended complaint that does have more information in it and surely that would pass the test so you should grant the roof fifteen motion but again there is no argument before judge as to why it would be manifestly unjust for the court to look at their late decision to ask for leave to file a second amended complaint  and so the court rejected that argument on the basis of it was manifestly unjust as as judge stivers pointed out in order to pass the manifest injustice standard that must be some fundamental error or some fundamental flaw in the court's analysis and decision of the and the ruling that is being asked to be set aside as best justice is the standard for rule fifty nine and not rule fifteen that's correct your honor it minutely in dismissal cases rule fifty nine motions in rule fifteen motions get filed together frequent but rule fifteen doesn't apply if there's a judgment that's been entered right that's correct your honor they first must satisfy the requirements of rule fifty nine so having failed to persuade judge starr evers that there was any manifest injustice in his original ruling judge stivers properly said i no longer have  grant your rule fifteen motion and cites this court's opinions in leisure caviar and others so are you familiar with this morse case from the sixth circuit and this seems to suggest that when six sixteen fed third at six sixteen in the leisure caviar case where the court said that when a party seeks to amend the complaint after an adverse judgment it does must shoulder a heavier burden instead of meeting only the modest requirements of rule fifteen the claimant must meet the requirements for reopening a case of stablish by rules fifty nine or sixty i think leisure caviar more accurately reflects the thinking of this and more for what exactly is your argument i think my argument your honor is simply this that when those two motions are filed together the standards affectively eliza to some degree but the rule the requirements under real rule fifty nine or are not obliterated otherwise this court wouldn't have said that when a party seeks to amend after an adverse judgment they must shoulder a heavier burden that is rule fifteen by itself is not the proper standard rule fifty nine and rule fifteen are read together but in this keynes the plaintiff simply did not articulate sufficiently for judge stivers why it would be manifestly unjust after eight months for the court to say no i'm not going to give you a second chance at this point i'm simply not months was not councils all it's nobody's fault not your fault not opposing counsel court has a heavy docket what is the eight months have to do with what we're talking about here the eight months is is relates to exactly the point the judge griffin made at  beginning of the appellant's argument and that is when you are put on notice by a motion to dismiss that the allegations in your complaint are insufficient to state a claim and moreover the defendant invites you to file an amended complaint and you choose not to do so you are rolling the dice and gambling as to whether or not this original complaint that you have is going to save the day for you there there would have been no prohibition particularly given the fact that the scheduling order and all other orders of the court had been suspended during that eight months meaning nothing could be filed no meaning meaning the plaintiff could easily have had asked for leave to file that the court didn't suspend its didn't say you can't file anything more it simply said i'm going to put all of the other deadlines like the deadline for filing amended complaints on hold so it had the amendment been permitted what would have been the prejudice if any of that your client would have suffered as a result of the la m would have suffered prejudice simply by virtue of the long passage of time perhaps the on availability of witnesses this case was originally filed in state court against a different defendant know what specific prejudice  just in general you might have had problems finding witnesses the one thing another but you don't know because it never came to that and you never had to go out and find the witnesses  because the plaintiffs didn't argue that there was no one reasonable delay as to which we said no there is i think we argued that that it i think at the district court level g m s focus was on the the the futility of an amendment along the lines of what the plaintiff had offered in her second amended complaint i don't believe that it was substantial  lay that we argued there because the issue simply didn't arise at that stage i know in our motion in opposite in our memorandum in opposition to their roof fifteen motion we did argue for futility but that issue also is not before th all right thank you very much thank you you're  and i want to go back to your point about the issues first just briefly and issue number one is addressed to the first order that includes that includes the with prejudice language i agree that that with prejudiced language is not specifically called out in there as has been discussed there really wasn't any reasoning there issued to goes to the emotions that were filed after the dismissal order and the district court's order that was entered there which is where the argument was went made about why and then that should be allowed and so that's where we focused our argument that issue one was intended to encompass that first order that includes that language doesn't do it it doesn't call out the with prejudice language i gree doesn't it doesn't it doesn't speci your brief issue that the order should have been without prejudice rather that with and if so we are i mean it's not a statement issues no your honor if it's in the argument contained in the brief tell me what pages it's on so i can read it now  so all right how about the the argument is that after the judgment was heard dismissing general motors then you filed both the rule fifty nine motion to amend the judgment or get relief from judgment and a motion to amend the complaint i mean don't you agree with me that before you can amend a complaint you have to set aside the judgment against the defendant general motors because they're no longer in the case so first of all you have to decide the rule fifty nine motion and set aside the judgment and then once the district court does that then they can consider your rule fifteen motion of whether the complaint should be admitted because now you have a defendant back in the case i mean do you agree with that order i agree that yes that's why both motions were filed that's how it's i mean that's the sequence of it so you don't get to rule the you don't get to the or rule fifteen motion to a man unless you get past the fifth rule fifty nine motion to set aside the judgment you agree with that i agree that yes i agree the trial court had to alter a may and to do that in that in you