thank you ron good morning your honour's may please the court mandamus is extraordinary relief but this is an extraordinary case the district court permitted a frontal assault on an entire existing state regulatory system i'd like to st discuss counts one and five and then discuss counts two and three because the considerations  stored different between the two with regard to counts one in five the petitioners have brought a kitchen sink pleading attacking a bundle of laws and regulations most of which are part of statutory regulatory scheme that embraces different state interests and then they tell the court to just figure out where they're standing is and what the harms are that are created by this entire bundle of laws the responsibility of the plaintiff is to identify which laws the alleged source of their harm and this is the law that we're asking and to tell you the court which laws they are asking to be in joint with regard to counts one  is proper directing the court to dismiss those claims and with regard to counts two dollars and three dollars we would ask the court the relief that we are asking is to direct the court to apply the law which he simply failed to do because he had already found that the cumulative effects claim could move forward and apparently decided that it was not necessary to require more detailed pleading with regard to counts two and three if if you would look at counts one count one on page fifty three of the amended complaint and count five on page fifty eight of the amended complaint i think that the problem is very evident just from reading those two and this is the amended complaint this is the complaint that was supposed to fix the problem but it didn't fix the problem and even the district court judge and now acknowledged that it didn't really change anything that it was still a cumulative effects challenge to an entire bundle of existing laws that he found was permissible based primarily on it doesn't fix the details that it doesn't fix the defect because they still don't identify what in the statutory structure is causing them harm as we know that the complaint derives from litigate the complaint drives the litigation and so everything that will happen from here on is going to be driven by the scope of the complaint and the harms that they allege occur drive an ultimate lead to the relief that they request and so when you look at these counts count one and count five and you see how broad they are the state has no way i mean this is a challenge this is essentially a frontal assault on the entire not only on the states ability to regulate which is fundamentally i think the initial basis of their challenges the fundamentally challenging the state's capacity to regulate abortion entirely which i believe is foreclosed by president so i think that that the intrusion and the damage to the state here is not just the monetary costs that which would be enormous we have similar suits pending and at least six dollars states all three states in this circuit that have virtually identical cumulative effects claims they are enormous claims that have created an enormous invasion of state interests and states of the state sovereign interests to regulate health facilities generally and specifically with regard to abortion and so  i really and think i can emphasize enough how paralyzing this would be the department of health and just in louisiana regulates over three thousand five hundred health care facilities and they certify another thousand five hundred so when we're talking about as they're allegations claim a comparison from this regulatory regime this entire existing regulatory regime unlike the situation in heller stad which involved a statute applied to amatory surgery centers a new regulatory regime we're talking about a comparison to how the state regulates over almost six thousand facilities that i mean just the just having to go in and deal with the invasion of the state's ability to operate and run the department of health and license other facilities based on the scope of this claim would be exceedingly invasive and the bill of the state's ability to carry out its sovereign duty in its sovereign interest in regulating health facilities in the interest of protecting the health and safety of both women and abortion clinics and all people in other health care facilities which would be inhibited by the scope of this claim i've heard you talk about handle complex mammoth colossally big cases every day what makes appeal an adequate means their release you are i think that very paralyz certainly involved a large number of cases but they it was it didn't involve an invasion of state sovereign interests it did not involve system paralyzing state officers from being able to carry out their duties so i think that is a significantly different reason that would justify mandamus in this case and would prevent ordinary relief because i are believe that that is the purpose of this suit is to paralyze the state from being able to regulate i mean the scope of this claim is so enormous and by looking at count one and count five and the scope of those claims and looking at the relief that they quote request i mean they are essentially asking the federal court to place the state under continuing federal jurisdiction i mean that's an astonishing really unusual claim so i think the novelty of the claim also is something that that is it justifies mandamus and it makes this case different from a case where we might be able to remedy the problem on appeal we decision and the recent tromp decision in re trant where that the court and certainly that's a i mean those are different it's federal executive separation of powers but i don't think that that is necessarily different from an invasion of state sovereignty so that is i mean i would i would compare this to that where the court said that mandamus is appropriate to protect the state from vexatious litigation that distract state officers from performing their constitutional duties and this is exactly that kind of litigation those cases that this court and j p morgan and deploy orthopedics stepped back from actually granting mandamus but still gave some direction to the court in terms of the proper application of the law i mean we we that would serve a similar purpose as long as the court understands that he didn't apply that there is no claim for cumulative effects and that that with count regard to counts two and three you have he must actually apply basic rule eight pleading standards to each and every claim that they may so that the state can actually knowing that the district court even acknowledged that some of these laws were constitutional and so that just takes them right back in that kind of it's like quicksilver it does it dovetails right back into a cumulative effects claim and if there is no cumulative effects claim then it has infected his entire evaluation of counts two and three so i think that this court certainly has some decisions fairly recent decisions where it stops short of actually granting manda would point out that this is the amended complaint this is not the original complaint and and i think that they've had one opportunity to cure the defect and they simply didn't cure the defect and he didn't require them to he reached he's doubled down on the original ruling and said that didn't require them to do that he thinks the claim exists and i think that is the ultimate source of the problem with regard to counts two and counts three i think that it that if we if if this court directed the court to apply the law because he didn't do so and that seems fairly fundamental thing to for for a court to do i mean i don't i don't think that  and so i think the same pleading standards recall or apply you need to the they the plaintiffs need to identify what in each of these statutes they object to and what the harm is that is caused to them by these statutes and i would point we pointed to this in our brief and it's just i think illustrates the absurdity of the scope of these claims when it in compas is a requirement that says that they need to use sterile instruments or washing hands or have hot and cold water that makes us together i mean those are pretty ordinary requirements and if you read the statutes they are not singled out they're just very similar to virtually every regulatory regime in the entire code on every health care facility and the department regulates over thirty health care facilities including adult daycare including child daycares i mean there are a wide scope of facilities that they hospice long term care facilities i mean many of these facilities don't do surgical procedures but they do treat a large number of people who may or may have vulnerable circumstances and so they think compas an entire regulatory regime that ensures that there are basic sanitary percy's i mean that's that's one of the regulations at issue here is a regulation that requires them to follow the sanitary code you know i mean i really don't see how that can be burdensome and they need to demonstrate how it your honor i would have one point that i would also like to make is that i understand we recognize that discovery orders are not ordinarily something that would necessarily justify mandamus or that and that here there actually has not been one yet but i mean we're at the point where everything will flow from here discovery certainly will be again had already started and has been paused and but mandamus can issue when there's extraordinary circumstances to forbid discovery of the relevant information and with the scope of claims one in five there is no doubt i mean just back taking you back to the as i said before looking at counts one in five at those two places in the in the in the men to complain there's no doubt that this will involve an extremely invasive amount of discovery and the miss with this is going to discovery i the only thing that i've seen in our court is the st request apart for production of documents from the pla fs i recognize that both that's been superseded or there's a stay of discovery apparently in the district court is this are the supplemental discovery requests or the nd request whatever supersedes the one that's in front of us are those in the record somewhere and i just don't have them or no your honor they made there may be i think they're in the lower court record they're not in the record attached the only discovery requests i think that were in the records are attached to our in the visitor kit petition for m our petition that's the st set but and they have pulled back somewhat are they still asking but i don't think there's anything that prevents them from just asserting the same requests and and and number six and number eight in that request in our petition i think are particularly telling i see no reason why they can't simply reissue those requests in the same manner that they did in that set and they actually ask for documents going all the way back to two thousand and one for all licensed health care facilities that is an enormous request had he asked the do you have a protective order from the district court from the executive and legislative privilege associated with the development drafting in the middle of the laws and regulations no the only protective order the only thing the protective order covers right now i protect against some of those things and can narrow discovery but that doesn't solve the problem of exposing the state to the invasion of its sovereign interests to begin with i mean it is the invasion of the state sovereign interest that is the harm that cannot be remed on appeal and that should not be permitted when there is no legal claim i mean at best what they have is a novel claim which the courts have all it so said is appropriate for mandam when it is a novel claim that is likely to be carried out and we already have six very very similar cases there's one in arizona there's three in the circuit there's one in arizona there's one in indiana there's a state court suit i think in another state a bit this this is a test these are test cases and so i you know i mean i think that the state the invasion of the state sovereign interests carry an enormous amount of weight when what they are trying to do claim that has no comparative it's for i mean no comparison under any certainly not any abortion precedent and i will  please the court had their god one hacker for the states of texas and mississippi as a meek area i want to jump right in because i only have a few minutes today and i want to answer your question judge willett about the precedent for mandamus proceedings and twelve b six cases to focus in on the wider impact of this case and the harms to the other states and i think that answers the question both of why mandamus is particularly appropriate here and also why normal appellate review is not an adequate remedy this is not just a run of the mill case involving a corporation that doesn't want to pay for discovery what we have here is our claims requesting that a federal court take down or take over a state regulatory system regarding abortion so this is particularly appropriate for mandamus relief both in exercising the course he provides repair our confine the district court to proper jurisdiction and also because it intrudes on a delicate area federal state relations regulating the practice of medicine as one of the inherent police powers of the state but beyond that the errors committed by the district court in this case have the potential to repeat be repeated in another pending case and louisiana plus pending tech cases in texas and mississippi before appellate review can recur because district courts in texas and mississippi may look to this just for court opinion as persuasive authority and this court has found that normal appellate review isn't adequate under that circumstance where the case will go back up on review where there are other pending cases so for example and green lloyd's register another case where the court noted the impact on other cases is volkswagen now yes the costs of litigating these cases are going to be enormous dollar wise i mean this is going to involve years of discovery months of trial those costs are not just borne by one dollar litigant but they're going to be borne by louisiana twice for the two cases pending there and every other state in the circuit this is not just a regular case moreover the costs are especially excessive when you consider that these sweeping with these sweeping claims it's going to be extremely difficult for the district court to dispel that to distill the case down to its essence for the district court to identify a few discrete issues or questions the court is trying to answer to focus discovery and to focus on the trial process and the state defending these claims will have to spend significant resources really defending laws that have already been held constitutional because that's the essence of the cumulative effect claim that they're bringing here they're asking the court to strike down constitutional laws which the court has no authority to do it's ridiculous to require the states to have to hire experts for example to prove that sterilizing instruments is beneficial that's what they'll have to do under the district court's opinion and i want to make one final point and that is if for some reason the court disagrees that all of the element met and to be clear we think they have been met here and that it is appropriate but if you disagree at a minimum the court should do what it just did a few months ago and rejoin p morgan and that in that case and that's nine dollars afterward for ninety four dollars in that case the court in the published opinion analyzes the correctness of the district court opinion and while it ultimately denied mandamus the court remanded the case to the district court for reconsideration and light of the court's opinion gimmicky states do urge the court to grant them a nameless petition petition and prevent the tremendous waste of taxpayer and judicial resources that occur could occur in every state in the circuit if the district court erroneous decision is permitted to stand but at minimum the immediately states urge the court to say what the law is give guidance to the district courts adjudicating these claims and remain for reconsideration just as it did in j p morgan a couple of months ago and then the numerous cases cited in no twenty four of opinion thank you them for the plaintiff you know it's the only question before the planet today is how far it is willing to go to bypass the ordinary rules of civil and appellate procedure to create up fast track for merits review in abortion case that's exactly one of my questions is how we apply the for wills of civil procedure to the complaint can we start i want to make sure i understand exactly what the plaintiffs are challenging so i see a list for example on page fifty nine dollars of the complaint the series of regulations there is not the regulation included here the govern sterile instruments so are the plaintiffs challenging the state requirement of the use of sterile  plaintiffs they're challenging the twenty six pathetically identified statutes and regulations that forth and the complaint that states concern that you heard from a sparrow earlier today that we are somehow challenging the entirety of the law or every ability to enact any kind of regulation is simply not consistent with the factual allegations of the complaint which must be read in its entirety in the light most favorable to plaintiff the only regulation of some sort as i'm just trying to understand i don't see the exactly are they're called out by name and number of throughout the complaint and your honor the th circuit shouldn't be in the business of reviewing the factual allegations of a complaint after the denial of a motion to th one of that questions is the district court doesn't seem to address the standing of the plaintiffs to challenge those regulations the district board says the standing arguments are seen compelling on their face but it would be untenable to address them at this time so obviously one of the core uses of mean damus is to ensure the lawful exercise of jurisdiction so that's why i'm trying to understand for example when we talk about four thousand four hundred and forty five which we just discussed apparently is part of the challenge in this complain that includes things like regulations of physical space so is the plaintiff in this case june medical doing business as home is it in the same physical space that it was when i was constructed in one thousand nine hundred your honor the plaintiffs in this case have standing to bring the claims that they brought and let me tell you two things about that st of all defendants didn't raise certain of the challenge c n n challenges that they seek to raise here before the district court and it's not fair to hold the district court responsible for things the defendants and rates that kind of on your honor the plaintiffs can comply with statutes and still to challenge them that's still versus bolton and there is certainly standing to try to comply with regulations but to challenge the constitutionality of those laws and regulations council is the to challenge these laws and regulations and in no way is that an appropriate exercise of this court's mandamus review to reach out an airlift out of the district court a decision denying a motion to dismiss for some kind of appellate review on the merits of standing claims on the merits of the pleadings that is not a job for the panel carries started with the federal rules of civil procedure and i'm just trying to understand how the federal rules of civil procedure apply to the complaint that you the outpatient abortion facility shall be designed constructed equipped and maintained to protect the health and safety of patients personnel and the public at all times and so my question is how do the federal rules of civil procedure that you reference in you to satisfy it all to satisfy trombley has to plead facts not detail facts this is not a securities fraud case this is not a will not be case this is a rule eight pleading case so it must be facts and those facts must be read by the court in the laws as enacted and applied by the state which we have alleged here in the many many other paragraphs of the complaint that are in the body of the complaint and not just in the causes of action that the physical space requirements enacted by the state of louisiana do nothing to advance the health of women in that state and do impose burdens on providers of reproductive care that make it more costly difficult and expensive to provide i understand the argument on the merits of my question is on the injury in fact requirement of article three how can you be injured in fact by a provision that you already complied with prior to its implementation in the cannot apply since the building has already been constructed tells you that i can be injured in fact and continue to be injured in fact and continue to comply with the law and challenge it and i can challenge it on the basis that many other laws have been challenged including abortion which is to say that my compliance of the clinic compliance with the law makes it more costly burdensome difficult and invasive to provide the care the reproductive care to women that it provides and i mean that is an injury to the clinic and to the women who are its patients and that is actually a finding that the district court reached in i'm sorry your honor turned up but i i think it's important to recognize that contrary to louisiana's arguments earlier here today that the district court did enter alternative holding fair looked at the cumin of facts what it called the cumulative effects claim that not called that in the complaint but look specifically at the statutes and found that that is the burden and the injury that they cause and what i would say to you your honor is that it is not the job of the th circuit to create a fast track to review the district court's denial of a motion to dismiss it's for the district court to weigh those factual allegations and having found them sufficient the next natural step in this case is discovering an appeal in the ordinary course i have i understand divers n were it not for louisiana implementing it by law plaintiffs your honor i think there to understand in the panel should understand with respect to that provision and each of the other twenty five thousand regulations tell us in the complaint that plaintiffs are not required to plead with particularity exactly the you know what would happen the moment that particular statute is struck down with the clinic immediately move would it change its physical space that is not an allegation that needs to be in the complaint to satisfy rule eight what really requires what it requires what trombley were cars what the district court found and what this court should not airlift out of the district court to review is the fission facts to give these defendants notice of the claim then you can see that defendant understand the claims against them they can look at the complaint they know that these claims are challenges to the overall to the statute in count one and to the t individual statutes and regulations specified in count two and three of the complaint what the exact facts of each statute and what the appropriate relief as for the district court to enter is a question for a later day and for the district court the claims that this is going to be paralyzing that clinics will move that the they will not be able to appropriately regulate those are questions about the scope of relief and then we are not here after an injunction and i'm not asking questions about the scope of relief and i apologize for anything that i said that maybe been missed unclear i'm asking a threshold question we're obligated as federal courts to spring for united states in article three of the constitution to ensure injury in fact traceable to actions of the defendant redress a bill by a remedial federal court and my question is simply how does the requirements about physical space out of the requirements about toilet facilities in hot cold water how do these things injure the plaintiff they injure the plaintiff by increasing the cost and burden what i'm hearing that is the plaintiffs must undertake it in order to provide the services that it provides they make it more difficult more costly more expensive to provide reproductive care to the women and the state of louisiana that is the injury and that is an ongoing injury to continue to comply with the physical requirements requires costs and requires  to review but we're not there yet the relief that we seek is injunctive relief preventing the unconstitutional enforcement and application of laws that treat abortion care and the women who seek to receive differently from every other form of reproductive care or other similarly safe medical intervention in the state of louisiana as we allege in detail in the complaint the version is extremely safe it is much safer than many other medical procedures for which these kinds of regulations do not apply and there is no reason no fact that would require this level of intervention or regulation so yes plaintiffs are seeking an injunction against the unconstitutional application and enforcement of a large number of laws in louisiana because there are a large number of laws in the easy ana that treat abortion providers and their patients unconstitutional that is not a question for the th circuit to answer today and the th circuit should not reach out and airlift this case out of discovery out of district court out of the supervision of the magistrate judge when it comes down discovery and create a fast track for appellate review on the merits i understand that these are questions that are important to this court they are important to the state of louisiana they're important to the state of texas motions to dismiss have not been decided important to the state of mississippi which didn't make a motion to dismiss their important to my client the clinic the doctors and to the women they said these are important questions and nobody is denying that what we dispute is that mandamus is a fast track to appellate review on the merits of a particular thread of cases abortion cases involving women and their doctors that is not what mandamus is for or mandamus is an extraordinary read not a ticket to the fast lane and that is not how it should be used or all of the provisions challenging the complete different than those would apply to other medical providers yes your honor i believe so all of the provisions that we have identified in the complaint are statutes and regulations that the fate of louisiana has enacted and applied to providers that patient abortion facilities and not other providers of similarly safe medical care if you if you can go to the dentist or go get a colonoscopy or have many many other kinds of reproductive care you go to or over to and and you need one of the many kinds of more invasive procedures that an o b g y n might provide they are not subject to these kinds of regulations so here's one the national human trafficking center resource hotline each outpatient abortion facility shall post information regarding the national human trafficking resource center hotline so i tend to take it you're probably complying with that today and i take it from that what we're talking about earlier that you your view is you don't need to prove that you would take the site down you just need to say this is different than what would apply to another doctor's office to other doctors offices not have to apply not to the post  hot line in their offices they do in texas i think they may in texas and i don't know what the rule is in texas but i do know that when you distinguish between one kind of business from another with no rational basis you just english between an abortion clinic and you know  with no basis for the distinction that one must post that and the other must not as my death count five it was my question is is that true is it louisiana did other providers not need to post a hotline number i'm not familiar with average elation in the state of louisiana that governs every other form of medical care but i will tell you that each of these statutes and regulations thing goes out outpatient abortion providers for regulatory requirements that are not imposed on other similarly safe medical interventions and that there is no rational basis for that and that's what's alleged in the complaint i'm not going to add allegations factual allegations today i will stand on the allegations of the complaint and i believe that the factual allegations of the complaint are sufficient to give the defendants notice that there is no rational basis for the line that they draw that excludes abortion providers and their patients from every other similarly they form of medical care in the state of louisiana that is the fundamental issue raised by the complaint and the extent to which this state draws that distinction your honor and whether that's a with the improper purpose of making it difficult to obtain abortion in the state of louisiana or whether it's you know equally applied to every other facility and we just don't know that that's a question for discovery and it's true you know this case should go to discovery and discovery may be broad and discovery may take a while and it may you know involve costs and you have heard today the states complaining about the cost of discovery they are concerned about the amount of time that discovery takes for every time i represented a defendant who was concerned about the time cost and burden of discovery now that's not my question why do you need discovery to figure out what regulations instantiates apply to other you say similarly situated or  if they are uniformly applied to other similar businesses if you your honor that they are not uniformly applied that's the factual allegation of the complaint to the extent that the state has a disagreement complaint in factual allegations that the district court and this court also should assume to be true for purposes of a rule twelve b six motion that the statutes and regulations that apply to abortion providers are different from and more onerous than the statutes and regulations that provide applied to others providers of similarly saved medical interventions if the court has a question about that difference and the state has a dispute about that difference that's a fact dispute that is a question for summ judgment that is a question for trial it is not a question that they got to raise in opposition to a motion to dismiss much less on mandamus to the th circuit court of appeals that is not an appropriate subject for defense to a rule twelve b six motion and mandamus should not be used to pluck a denial of a motion to dismiss out of the district court bypass the opportunity to test those facts through discovery through summary judgment through trial and get the factual answer that would allow the court to answer these questions and understand the differences i can't give you that answer because we haven't been through that process or right now i can just stand on the factual allegations of my complaint that's what defendant should respond to that's what the district court looked at that's what this court i would say should look at but this court shouldn't look at it at all it is not the job of that this circuit court of appeals to intervene in a district court litigation because defendants are concerned about the cost and burden of discovery or the relief that plaintiff might get ultimately at the end of the day there should be an express track or a fast track to merits review in abortion cases unlike every other case defendants would line up down the block if they thought denial of their motion to death smith gave them an opportunity to petition for writ of mandamus because it's covered with going to take a long time and costs a lot or because they might get relieved that they don't want the risk of loss discovery that's the job of the magistrate so job of the district court you don't have any district court order here granting project cover you don't have to have a review process have barely begun in the district court there shouldn't be a fast track for abortion cases to bypass that process and come straight to the th circuit for merits review on what was fundamentally the denial of a motion to dismiss there's no dispute that the district court recognized that page fourteen and fifteen which is where you would think he would apply because he's talking about the defendant's standing arguments and he says in a vacuum these arguments appear persuasive however to take on each regulation individually and separately to show injury in factor the district court there is looking at the individual he has already articulated and clearly understand that leaving fandor is i don't think there's any dispute there but again even if the district court doesn't perfectly apply it voluntarily defendants feel that all the time when they lose a motion to dismiss that doesn't mean that they get a writ of mandamus they come to the th circuit and have the denial of the motion to dismiss review there's no special pleading rule and there's no special appellate rule and there's no express lane or fast track for the state to bring to the courts of appeal of cases involving a portion and there shouldn't be so in the warden area twenty six dollars case obviously the  who goes on to discovery doesn't get discovery into for example documents that would be subject to executive or legislative privilege regarding the purpose as you put it in response to judge you know one of the drafting of the statutes or the regulations is that the sort of discovery that you intend to the district court and the magistrate judge supervise that all the time they handle issues of the utmost sensitivity and enter appropriate protective orders including outside counsel's eyes only litigation counsel's eyes only there are ways to manage discovery that district courts and magistrate judges jews every day because that's their job as their day job and that's where those issues should be in the st instance not here and you know federal rules don't plaintive or cases by category one of the great promises of the federal rules and of the federal process is that any litigation can come to court and if they can state their claim and give notice of it they will be heard and that they come into the courthouse and when they're in the court as the same rules apply to all litigants they don't promise victory they don't promise relief the rules don't promise an injunction they don't promise that we'll get what we want the end of the day but what the rules do promise and what the court sh promise this process and that's what plaintiffs are asking for here the federal rules promise a fair process for the redress of grievances they promise an opportunity to be heard and their plight all begins with no fast tracks no express lanes no free passes no airlift out of discovery and that process matters and this court should follow that process here should deny the petition for the writ of mandamus it should do so some merrily without giving defend the advisory opinion that they are clearly see came as shouldn't bypass the ordinary rules and fair procedures to create a fast track for merits review in abortion cases we respectfully request that the  briefly your honor i like your honors i'd like to hit on just took a couple of points so st of all to the point that the kind of closing point that my colleague made about  free pinion we're not asking for an advisory opinion or asking this court to exercise its authority that's been clearly recognized to grant mandamus where allowing the courts conduct of trials outside of its  harms the plaintiffs and the defendants when the defendant especially when the defendants are states and that is i think a very very important thing i would take issue with my colleagues point that this court can't airlift a claim out of district court certainly it can do that mandamus is the vehicle to do that and while it is an extraordinary remedy and we have recognized and acknowledged the limits on the scope of that remedy that is the only remedy that we have your honor what i would do is i would point you to the regulatory regime that's embodied in the statutes in the in the in the black letter law and you can see just from pre going through a perusal of the entirety of those those statutes and and  you have a list of all the different kinds of facilities that l d h regulates i mean it's an enormous number ninety percent of those statutes you can just read them and see that they are not treated differently so that's not just a factual allegation it's a legal allegation when you make a statement that certain statutes treat you differently and you can read one and read another and read them in seventeen different statutory regimes and see that they are and i think that our petition of the the thrust of our argument here is related to jurisdictional limits and standing and applying proper standing requirements when you are challenging individually it's back to my question do you agree they have alleged th differently but i don't think that that i mean abortion clinics are subject to a licensing regime ok i mean there are others there are other entities that are of lesser and greater  medical and invasiveness that are also are subjected to licensing regimes and i do so i don't think that that is a statement of fact i think that is a conclusion and conclusions of law in fact are also not entitled to be treated as true only factual allegations under a twelve the six under the rule a pleading required to be treated as true at the motion to dismiss kind stage so i think a large that is a defect and a significant number of their allegations where they may conclusory statements that are conclusions of law in fact they're all to make conclusions for this case they're not factual allegations and if they had to tease those out and properly follow pleading standards and i think that really goes more to our claim with regard to counts two dollars and three dollars because that's where they tried to come in and list the statutes and say ok we did it i mean that's not enough and it's not enough to just make grand conclusory statements that are actually ultimate conclusions of law in fact those don't deserve to be treated as true only factual allegations and to your point earlier they do attack the entirety of our regime once and even judge acknowledge that he said that once you attack the fountainhead the authority to regulate and all the regulations then you have attacked everything including the requirements that they have hot and cold running water and they don't allege that they intend to change any of their physical plant were that's a good example to look at with regard to comparative ness of whether they're being singled out every single health care facility licensed by l d l h is required to comply with the basic basic set of physical plant requirements and they are not treated substantially differently on the basis of the black letter law so they have to do more than that to me relate will late does not permit that kitchen sink pleadings it does not permit sh pleadings it work it has teeth that was the point of act of a ball an at and and twamley so close to leave a leave you with that point i think that these are improper claims and that counts one in five should be dismissed and two and