please the court david bradford on behalf of mr to do with the courts permission i'm going to take five minutes of argument mr nagle who represents mr verified will take approximately three and we'll reserve the rest for a bottle  creating a situation where that attendance can see if they promised to pay my client a five percent royalty on this product acknowledge the millions of dollars of the product was sold that he hasn't been paid a penny and under district court to dismiss a complaint and did not leave to amend it which is precisely what was done here furthermore even if the denial of leave to remand were somehow reviewable on an abuse of discretion standard it the only done a five deficiency in the complaint was the theory erroneous as it was that the lanham act claim was precluded by the fact that my contract my client arguably had a contract remedy if so  mr barefoot under his arrangement for that matter and clearly under those circumstances whether or not honoring the contract where are entitled to pursue in lanham act remedy you know i think that i don't know  do what he did in this case but i suspect he has more persuaded by the fact that the bought and  that i think the obvious that we don't have time doing so and all we can do is speculate but in fact the declaration signed by the defendant acknowledged that they had agreed to a five percent perception may have been on the face of the complaint alleges that this show was broadcast without contractual permission for authorisation and that no compensation other than the twenty five thousand dollars advance had been provided there's no a valid lanham a claim the only way you could find a way to dismiss it if you went outside the pleadings and found there was a contractual relationship that was inconsistent with the allegations of the complaint they say the district court could do that because they filed a motion und it could not have been under twelve b one because there's no suggestion the complaint since developed cause of action it was inappropriate under twelve districts finally in the awarding of caucus was an abuse of discretion this was a situation where the defendant contested personal jurisdiction in illinois and said there is personal jurisdiction in california we wanted to have argued in court and not spend a lot of time fighting about the jurisdictional issues and we did what other courts have applauded and said we won't waste time money issues and reserve for the time for rebuttal thank you in one motion but the language for the grounds for the motion states that it's for use they claim and it's quite clear that that was what the they proceeded on before just real which under twenty six motions we know we're going to looking at  complaint and seeing whether or not the complaint sets for the grounds for relief here that we have conflicting affidavits from both sides as to whether or not there was a contract that was allegedly for and on the face of those conflicting affidavit it appears as i said earlier on the part of the current year they come back once the case is examined under the twelve the one magnifying glass and say that well it was wholly improper to court to find the existence of a contract and in fact mr barefoot contradicts himself in the briefs here and initial twenty five thousand dollars was transferred here from mr bear but there were payments that were made pursuant to the royalty provisions and all of that information was in the district court records do we know it from finding we do not you it's a diversity case did they not have an absolute right to unmanned or whether the absolute whether it was in atlanta yes or no i would say with respect to absolute right the answer is no because it was clear that judge permission is that the court looked at what had happened here looked at the history of the king thank you thank you laying about what the current thought and did and looked at i don't think so because the judge was armed with that motion just because you file something restraining order that was filed in the district court here in california they had filed a complaint in illinois moved towards u r l that motion was denied based on the personal jurisdiction question depositions were taken after we had put three witnesses up for deposition the and i think why i don't think it's because the history of this case and the two actions that brought the case to california and i think that again the pivotal issue was that they removed for a temporary restraining order which suggests that there was some form shopping that was going on here once  somehow your attorneys did something wrong in the pleadings of this case which this order is which gives no reasons for all we can assume is the judge real rightly or wrongly dismissed for failure to state a client and therefore you are out of court forever notwithstanding the concession of that there is a valid contract and not withstanding the lack of dispute that we've never been paid a penny in roxy's under that contract and i submit that this is really in a grievous error that should be corrected by this court furthermore this court can both go in schreiber have addressed circumstances where district court fails to give reasons for denying leave to amend and has not been willing to speculate or try to infer reasons that might have been given on the basis of some kind of speculation and has reversed those uniformly for  discretion finally i would just note that because the record in illinois makes clear the judge must cow was troubled by personal jurisdiction and specifically pa meant it in dealing with the t r o that the first question that she would have to address was personal service diction we believe it was appropriate to try to get a ruling on the t r o on the merits where the personal jurisdiction issue would not in fact the court's analysis of that that is why we came to a court where they did not few personal jurisdiction that's why we then sought the t r o that the district court in illinois had trouble with because of the personal jurisdiction issue that was plainly not an attempt to get a check and by the ample work to form a shop it was an effort to get a day in court and one which i