it nine o'clock this morning but the st day in almost a year or so and we we did this in order so that we could accommodate lawyers who wish to appear in person as whom although we're pleased to have seen mark humans as well as but but where we can safely proceed in where the where it's requested we just you see we we would like to be able to offer that it's such a nice thing to be able to safely proceed in person we also have a covers for the microphone and please use those and we had individual check in times and so many other so many other safety precautions if you be a few are aware of any other such safety precautions that you would suggest i'm sure that you should alert the clerk's office because as this is new we want to make sure we're pursuing every possible safety precaution that is appropriate for a court room but having said that i will call the next case thank you twenty million two hundred and twenty thousand one hundred and ninety six west african ventures matter jurisdiction for the st five minutes my partner was andrew meet will be discussing errors in the district court summary judgment and findings of eck and clinicians of law for i believe thirteen minutes and then will reserve two minutes for  briefly the facts west african ventures all laugh and see trucks provide vessels and equipment for offshore oil and gas development nigeria nonparty ranger international other signed contracts to to least some of the some of and the shell projects whedon's you trucks allege that ranger international failed to pay what was due and they now sue us as guarantors in the trial court there was another guarantor ranger offshore they did not file a notice of appeal and are incorporation and principal place of business like a corporation in which case it's a nigerian citizen or does well have to take the citizenship of its members like basically any other type of into the and if that's the case well we'll get to that later but that means that of the entities in the yellow sea i mean you're you're you're briefing it and i'm understanding your brief as though we're talking about an american limited liability company with with members if we do that  expatriate community in houston then that person would be for diversity jurisdiction purposes as a domicile year if used then you would be a texas citizen and therefore that would defeat jurisdiction and that's why this court has said that that citizenship must be distinctly and affirmatively alleged and it can't be supplied by argument or inference so far the i believe th circuit and numerous district courts within this circuit have all held that in order to properly invoke the courts to the district court's jurisdiction you don't just need to say trust me i'm a i'm a nigerian it's easy you have to go through and allege the citizenship of every owner so that way that the court can see for itself who what what jurisdiction the party is a citizen because otherwise it's just a conclusory affidavit that there's no way to really test what it what it means so beginning and as we discussed earlier that they they failed to allege the citizenship of the members and if there are no other questions i will i'll sit down thank you very much  thank you judge honorable court i do truly appreciate being here i think it's my st in person argument about a year and thank you for providing that opportunity i wanted to do a little bit further address judging or heart  your question which was about the affidavit and so if you look at the district court's order on this issue the district court held that because it was like a corporation it didn't have to look behind the curtain at the citizenship or residency of the it's as one hundred percent though it is that the term used in the in the declaration so in the declaration it so so the st yes correct but the st step of it was the judge didn't look at the declaration because the judge said this is like a corporation subtle citizenship doesn't matter so you're your question would be had the judge said i'm going to look to the residency because it's more like an l l c then a corporation would affidavit have foreclosed that and so there's two reasons why i wouldn't want mr heron address which is its conclusion re you don't get to just say they're all it's one hundred percent nigeria no but the other reason is that the actual burden of proof when you go to the  courts holdings is you have to identify the owners really that makes sense because we've got to be able to check you can't just say it's one hundred percent nigerian owned is that one person is that one hundred people to take a step further back are you satisfied liability company in the united states but also a little bit more like a partnership than it is a corporation one of the reasons being the way that the share structure works is you can you can have the d limited company the liability of the owners is limited either by a plaids or by a share ownership which is more similar to a partnership and in general partnership structure it's not really a kin to a corporation or a limited liability company in the united states and so i don't think that it's got a direct one puerto rican entity that's ever been held to be an exception to the rule because of the fact that they are there not a common law jurisdiction but of course nigeria is a common law jurisdiction but the district judge's opinion says where is an entity with legal personhood perpetual existence governed by a board of directors with transferable shares and the state has attributes similar to the united states corporation or any of those attributes in correct that the judge cited here well i don't know that i don't know if they're incorrect because we don't have the all of the documents to back up the legal structure of the entity but they're also true of a limited liability company right if i looked at each of those elements they would be true of an american limited liability company governed by a board or a manager governed by transferable shares  enterprise products are publicly traded and in fact general morgan d changed its entire corporate structure to become a inc instead of an l l c for this very reason it was subject to jurisdiction in all fifty states because of its ownership structure so you can be a publicly traded limited liability company but you're not a corporation even though you've got a board of directors easily transferable shares limited liability of the owners so simply holding that it's analogous to a corporation the supreme court  you either are a corporation or you are this one entity under puerto rican law because they're not a common law jurisdiction or you're outside the doctrinal wall and so that's really i think where the where the district court got it wrong is the district court said i'm going to look to find attributes that are similar to an american corporation and say if it's got some of those i'm going to say that it falls within the corporate review for jurisdiction rather than looking to see i really appreciate that question i think you got right to the point but assuming that there is jurisdiction then we would have three other errors that the district court committed during the trial and i think part of the problem is with the district court's findings of fact and conclusions of law arises out of the way that the trial occurred and the timing between the trial and the findings of fact and conclusions a lot which is almost a year after the trial that the core you know normally in a jury trial you'd have a verdict read like that but here it was almost a year or maybe even a little bit more than a year right on before the court issued the findings of fact and conclusions of law and then final judgment and during that time it appears that the court for got that it excluded the testimony of the expert witness on damages for a lath and what happened was that the expert for web had prepared a report and i was the trial lawyer in the case and in handling the appeal as well as mr heron and so when the expert prepared the report they used the wrong numbers for the conversion rate of niren dollars to prepare the damages report and so we waited till till we were planning on waiting till trial and they apparently in prepping for trial noticed the issue and tried to supplement the expert report seven days prior to trial we objected on the basis of prejudice in the district court found that there was prejudice and excluded the evidence and allowed them to make a record by putting on the testimony anyway now unfortunately when the court when a year later to write the findings of fact and conclusions of law the court cited directly to the evidence to the testimony that was put on simply to make an appellate record and i didn't perform any cross examination because it was just a sort of bill of review type of type of situation and so the court directly cited t paragraph fifty three dollars of the of the findings of fact and conclusions of law as the only evidence to support d the damages calculation was the excluded expert opinion the two dollars to the excluded report or did the judge perform his own mathematical calculation which oh by the way was accurately reflected in the supplemental report that he had excluded as i understood the supplemental report was to correct an error in the supplemental report was to correct an  or which was the application of an incorrect conversion rate the judge directly signed into not the report in paragraph fifty three but cited to the testimony at trial by the expert mr arnie that testimony though was simply for the appellate record not for and so we didn't cross examine him and we didn't offer any competing evidence i have a question about that that's when they were making their bell you could have cross examined couldn't you because you don't know for sure what's going to happen they want to make a judge is in there trying for them so that themselves and so they can you know go back and reconsider did you have the chance to cross examination to cross examine during the bill if you wish to i will say this i don't recall i remember that and i was trying to remember that this morning i don't recall whether i had an opportunity to cross examine him at the time i remember a discussion about it but i don't recall whether i did and i will say this there are different ways that that one might go about handling it on the fly during the trial but i wasn't prepared to cross examine him on an issue that had been excluded i cross examine him thoroughly on other issues and i thought very effectively on this issue because it had been excluded and prior to the trial i didn't have a cross examine outline it what did you do when you when you discovered the district court and relied upon this what did you do this well i think that what we did was we filed i think that was one we got i can't remember if we got a draft findings of fact and conclusions of law if we got the final ones but we filed an objection and i'll could the district court have just divided this six million by the two hundred and twenty to get the proper exchange rate maybe that's those numbers are right that you get the point pop possibly the court could have done that although why would there be multiply then the number you get by the interest rate that i know there's at least one person in the room who could do it and at least one who put it ok so i'll say this i don't know whether the answer is a correct court the way in which the plaintiffs decided to put on their case was through expert testimony the court relied on the expert testimony if the answer is the court surely couldn't perform the calculation on its own then remain on the case and let the court do that right and get and do it the right way the problem is on this record in front of you what we have is the court relying on an expert opinion that the court excluded that somehow found its way back into the findings of fact and conclusions of law retroactively after the trial when i didn't have a chance to cross examine them or have to have my own expert perform the calculation that my apologies i didn't and couldn't perform on my own even if it is a relatively d so i probably could've gotten excel spreadsheet and figured it out  but we didn't have that opportunity at trial and it really surprised me to find a citation to exclude evidence coming up in the judge's findings of fact and solutions a lot and as to the dollar on arnie's testimony to the pending actually on the calculation appellate purposes only because i exclude his opinion if you want to go over your other air really quickly i will the other two that we had was that and i think that the foremost want to take up the minute that i have d on this we've got the no evidence of demand issue i think if you read the briefing what i would just say on that is that demand was an element of the contract demand was not a demand was not a pretty condition proceed and i would if i owe you one hundred thousand dollars under a promissory note that's a demand i owe it to you when you demand it i don't owe it to you intil you demand it or unless you demand it and here there are very strict provisions that require the type of notice and how it needs to be given for the demand to occur there was no evidence of demand no attempt to put that on and so that's fatal that part of the case but the i think most important part here on the on the limitation of liability is the notwithstanding argument and the reason is because of the conversion rate to the ira now are our position is it is very direct or not finished in fifteen seconds if you let me is very direct as between the two parties either the conversion rate read together that limitation on liability means that it that it goes both ways the conversion rate can hurt and harm son taxes the guarantor or read together with the guarantor protection of the of texas law and that notwithstanding provision that the provision can only benefit because it needs to be placed in context and all of this arises out of the children of vessels and the renting of the quit meant to support to off fuel oil and gas projects in nigeria want to shout one is for another company called  became concerned about the amount they were owed from a range of international limit so here's what they did they go to the parent company which is ranger offshore in the united states a party to  original litigation but a sense dissipated it exists literally only on paper and they also go to the money behind ranges these are the money men in dallas sontag's who put the capital up for ranger to do hyper technical defenses to try to avoid the deal that is struck and avoid its guarantee on a technicality and it's not really a technicality it's self astri is what that exercise nigeria that would be correct because the nigerians and there's an affidavit to this effect from why it's legal counsel used the word corporation and company interchangeably that's how they use it but if we drill down to seawater is this anti it is a limited company how does nigeria come up with the concept of the limited company well it looks to the former imperial power namely the united kingdom and it is adopted english law when it comes to corporate structure and in terms of its justice system it's not unusual happens across the world so that a limited company in nigeria is exactly the same as the limited company in england they're just different places and it was mentioned american courts would treat an english company limited company in the same way that they would treat an american corporation for the purposes of diversity jurisdiction life is how wives should be treated in this case and there's a couple of cases percent nigerian company d limited company in order to comply with the nigerian content act a bit of local legit legislation that means that there is actually nigerians who are doing the work in relation to the oil and gas law and in nigeria to depose her and see if she came up to proof on that and there is literally not a shred of evidence that one of has any connection to texas or delaware that might defeat if you go on the website and if you're in the business chartering vessels in west africa and courage you did the st thing you will see that is on the top right hand corner it says you're one hundred percent owned nigerian paula and all of the corporate documents to support that statement have been provided and have never ever been traversed ultimately it comes down to the approach the judge when it took on this was a duck test you know if it looks like a duck if it walks like a indicative of the general attempt to avoid the obligations they've assumed and we see that next in the agreed exchange rates so here's i have this work on the shell projects get a guarantee there is a an exchange obvious answer is to hedge against currency fluctuation because if the value of the ira goes down then you'll guarantee is worth less so sontag is a sophisticated entity it obviously understood what the reasoning for that  and the conversion then is just simply a mathematical question so some such claims will hang on that means we owe more than the primary obligation it says right here that you can't do that but that's not true it is exactly the same amount it just does it in a different currency this contract because it seems a bit unfair to that would is functionally rewrite the entire contract and taking out an agreed exchange rate that has been perfectly proper included probably included within the contract and part of the fluctuated we've cited to the wm mccrindle versus the rand case out of the th circuit where tells us the proper conversion rate is determined by the contract itself exactly so we don't have to worry about timing here because we have a contract that tells us what the exchange rate is like to move on to the rd issue and that comes to damages and again i think we haven't really had the full picture presented here so to come up with to prove our case on this west african benches and see trucks group needed to pull together all of their invoices that have not been paid to the subject of the guarantee and present through evidence signed these are our invoices and they haven't been paid and they did that they did that through their managing director michael i'm a math in a spreadsheet and things that i can't do which is why i went to law school so mr oni was kept returning to do that and he presents a spreadsheet for d the shell project and he presents a spreadsheet for the to that and nd it's an important point when he says this is the total amount outstanding here's the interest and now i've got to convert it into dollars now the mistake he makes is on the colorado project right because the mathematical mistake now mr mead says well this was going to be our crucial cross examination question and would have just slate mr o'neill right there d and then you know that maybe but i'm not sure that would have actually happened since they never asked to depose  report which is what i thought there was a citation to the wrong report that we did not see eye to see into the correct report but it ended with a notation that it has an interrupt number in it and then the court fixes the number think that's quite correct if it is that's not what he meant suppose we could have gone forward with the original reporting hoping nobody noticed because it actually in years to our benefit is more money but i wouldn't do that because that would be unethical and improper and drawing that sort of error to the attention of the core is obviously the correct thing to do and it's not why there's a great deal of prejudice or any precious for that matter it's just a simple correction of a mathematical error and is it your position as an officer of the court that the amount in the judgment  him because you thought you'd want to figure it out but that's actually indicative of the reality of the situation is that everybody except mr romney's figures when they've been can as he's calculated by judge bennett was a little on satisfactory in that we saw or really is just correcting a mathematical error on the didn't cause any prejudice to top but the you know the way that came around was that he was still allowed to testify to the correct figure because otherwise you'd be in the slightly bizarre position of instructing a witness to testify to something we've all just established and and in fact admitted is not true so if you take the a step back from th and look at it in a practical way what's the purpose of an expert on damages who's functionally forming the role of a human calculator the also that is for him to get to the correct number and that's what he did he make one mistake he fixed it and then we got to the correct result and that really is the result that we should be reaching in this case terek issue of what the interest rate was and what the meaning of libel plus nine percent so those are the lip that the issues left over but in the briefing the push he did that summary judgment on no occasion motion for summary judgment never contested liability so we had a summary judgment pending that was granted and now after the event centex tries to come in with some new arguments about present meant to consideration in ruling on the most so this was never presented and this is yet another attempt from some text to start digging out new and exciting excuses as to why it shouldn't be forced to pay on a guarantee that it freely entered into can you go back to the dues dixon point what do you believe is the cleanest depress the cleanest approach on this is to say that a limited company from the republic of nigeria which is based on english l has all of the attributes of a limited company from england from which after all corporate lower as we know it is derived and to say that a limited company should be treated the same as a corporation purposes of digests diversity purposes and courts have the the alternative issue on which seem to say to say that you should treat a foreign entity as an l l c and therefore have to plead the abuse that a limited company simply wouldn't have because the limited company in england or nigeria or any other common law jurisdiction canada australia is most similar to the corporation and in both its form its function and its identity and that holding busy would be consistent with how other courts are treated those entities on the boat for the purposes of diversity jurisdiction corporation and a number of cases that were referenced in the original briefing but not in the appeal brief where it's functionally assumed that that would be the case because the parties are trying to concoct arguments in order to evade monetary pledge to back their shares so it's not a corporation and with all due deference to you my hosen counsel the cases that he cites that hold that a limited company under for example english law is a corporation ma assumption that it is none of them performed an analysis to determine whether it actually was so that analysis hasn't been done that we could find by any us court to see whether a limited company and a british limited company and a nigerian limited company are a difference in at least that respect of the pledge which is more similar like i said to a partnership than it is to a corporation but i bring up a couple other points because if you raise the question about whether there is anything that shows that judge bennett relied upon the wrong report ok so he didn't just exclude the report he excluded the testimony based on it and if you look at the i think it's exhibit six but anyway the trial record i what he didn't understand but the problem is footnote fifty three says that the expert testified expert arnie testified to those numbers right right on the right are you there right above the footnote judge that's what that's what says if you look at foote the footnote arnie testified to it and if you look at page twenty four dollars of the trial brief judge bennett says this court will be limiting its review of this expert's opinion to the opinion that was disclosed in the original report filed in september the problem is footnote fifty three isn't the original report that's not the numbers from the original report that's the numbers that were in the supplemental report that was excluded and the testimony that he gave counsel me preceding the arguments today and we appreciate your cooperation in trying to keep an appropriate socially distinct courtroom so we could be here together in person and this case and the court will stand in recess until one pm when he considers its next argument of the day thank you very much