sorry you have to be the perfect lawyer to represent this particular client thank you your honor here again yes indeed thank you to disclose i'm patty certified so that causes anybody problems not not to me your honor call out the key pieces of evidence that for whatever reason the district court didn't look yeah or maybe maybe brush aside in light of the limited case law that existed at the time we're actually arguing on this the three particular reason and let me explain how that how that became an issue on the radar screen subject matter jurisdiction it was actually in connection with the motion for a protective order that i had one could filed in the underlying litigation and made a contention as not here on a summary judgment we're having prevailed and i got to show there's no disputing issues of fact i'm not you're after a trial and there's a sufficient you're whining i'm here after and i slammed grant in favor of going on on one sole issue which is this application of the immunity by the communication decency and c b s and the standard on that as is is relatively limited all i need to do all patty needs to do is provide submit evidence that if credit if well at the second deposition as to his involvement in this article but the thing is during the relevant time for the creation inception development he was all over the thing he co developed it the third reason is this this recent repeal of partial thousand dollars twenty five thousand dollars and then whenever the injunction lingering and that's that this i just agree with with with the analysis of how we didn't hold those numbers a year or two if the court agrees with with how his position i'm i'm not sure what the state court does and it's going to depend on the evidence speaking of which for purposes of the c d i without waiving the jurisdiction issue i view were missed given the privilege to argue to which is if i could laminate anything in this record that would be yet what the what that contains his diary once the mouse in early two thousand and a confirmation of exactly what i believe was doing article that they posted and published and distributed and worked on from early two thousand and tell october two thousand october two thousand being the first version that that we haven't which we actually got in two thousand and one who pulled off the involved in the creation and the evidence is all laid out in the briefing but just i wanted to point out exceptions after the record one eighty nine or one eighty nine adhesive and i just think it's key and it even identifies the responses that i really got from all the which is in evidence as well which which references the reader back three times to the infringing article the paddies complained about wealth and rose communicated with handy when he complained admittedly what was involved but that the point is statute applicable what your initial burden argument national burden was to show that it was speech in furtherance of a petition or free speech public petition or free speech on that he contacted the author who was walter well and told mr will if you go shows he would take the article off the bulletin board and put it on his own web page on the website bulletin boards have a tendency as new messages are posted old messages go further and further down for the end of the bulletin board and even for the back of the pain so that the come partner to find so nestor wrote offered to give it its own page because it received so much interest in the authors that yes he would like to do that and in february two thousand the article was given its own page on directly at that time mr rose did send out e mails and this is where this is the evidence that the plaintiff uses trying to claim that this was jointly devout somehow jointly developed at the time that the article was given its own web page on the website mr rhodes sent out e mails to the different sort of fine agencies advising them that the article was present on his website and including to pat advising them it was there telling them how they could review it inviting them to make comments about it to be sure that it was correct and inviting them to provide their sort of cation standards to be those standards change from year to year and the offer admittedly had a certain standards from not necessarily even the same years and he was having difficulty of painting consistent standards from all the different agencies because they didn't want to give them up so the request was made for that mr rhodes did make that request we do not dispute that but the article was already written it was already posted on the website at the time that request was made that is the post after the article was created already there the statements on that patty complains about and i think it's an important point to be  show that he contributed to some part of the article that is other than those statements or anything in the other party anything else related to the article he must address those specific statements and nowhere considers are he uses that in a community sense but that he did not write the compares are they also used emails including an email written by mr walter welt who is the author of the statement one of those e mails predates this litigation and it was written to patty in it mr will admit i am the author of the article that is that is the evidence that was submitted by patty the deposition which the judge deferred judgment in this case to give them an opportunity to go take mr wells deposition to see whether he would concede that any part of the article was not his and after they were given that opportunity they reported that they had nothing new to report back to the court the briefing at that time was already completed so additional evidence related to that deposition is not in the record but they did what is in the record is that they had nothing to report what they do what they do have is nothing more then the use of the term are after after the article was already written and after the article was already on the website in order to try to address that and it comes up with now to our arguments one which we're hearing on appeal is this notion that the trial court was supposed to make an inference because direly allegedly destroyed the computer that all of this related to nowhere at any time did they ever ask the trial court to make an inference that's not in the record they can't point you to that they they asked for an inference for the first time on appeal to be sure there were plenty of discovery disputes below the and the next thing that had to go to deal with the fact that the use of the term are arises for the first time after the articles are already written is it tries to refer to right or conjure up a preface says referring to this future comparison it says it's going to the future comparison is going to compare sort of the cation agencies on both sides of the atlantic  that's specifically what it says and what paddy tries to say now well there was a future article mr rhodes must've been involved in that and it's a must have been involved in that because he's using the word are that's it that's the evidence they contains all of the statements all of the statements about which had he complains in other words every single statement that is the subject of this lawsuit was already in the article it's already there when the use of the term future study was already being used with being used so whatever the future study was going to be it was not going to include some new statement that was going to be the basis of this lawsuit because those statements are already in the article and that's what is said now and i don't know whether an analysis ultimately says that that is referring to the value of injunctive relief or that just means maybe they're entitled to no one hundred relief at all i think a real an would indicate that the injunctive relief that they were seeking was a prior restraint so yeah i would have a problem with what they were seeking as far as in terms of relief but i don't think the issue of whether they were actually  title to the relief they were speaking the question is whether they it was in controversy or not let me let me ask you this when and when there is some question about jurisdiction then the practice would be very limited renia into the district court to flesh it out and you may be quite right that it's way excess of seventy five thousand where they may be right that it's where you may have been right when you said it was trivial  why shouldn't the district court make the findings and take us all out of history land well you know that maybe that the position that any planes who does not appellate court and if that's going to be the case in every single case like this where there's no specific amount alleged in the complaint and it's a raise for the first time an appeal is just an automatic go back to the happen here but my question basically is since you left at least in some down at least i am in some doubt about where the jurisdictional limit is satisfied and w just remain an well i would say one issue is i think that the plaintiffs misstates the burden i think the burden is not beyond reasonable doubt the that yes it's certainly yes and i believe we've met the five a promise but if you're saying there's a doubt with respect i would say ponderous or not if there were a doubt if i had a doubt reading the complaint there's nothing in the record so my doubts got to be resolved by a dollar amount when that refers to something and and what the plaintiff would have us do is make believe they didn't say that pretend or pretend it doesn't mean what they said that they didn't really mean when they said their general damages or special damages in their injunctive relief exceeded that that's what they would have us do we cannot take their complaint and just read out of it the allegations that they actually