lost as a result of miss client shareholdings being cashed out we believe that the court erred we believe that there is no lack of subject matter jurisdiction there was no article three case or controversy issue run of the mill substitution of a shareholder by the issuer who is not only the real party and interest is the paradigm of the real party and interest in the sense that the monies in a sixteen b discouragement action go back to the issue of this is not jurisdiction it's moot yes because exactly what i'm saying and as we're aware once the court has initial jurisdiction which is the law of the case here that there was is to cure these issues so that the cases can be decided on their merits we could draw an analogy to class x and we can more or rule twenty three excuse me that's it it's exactly what this is terry call it it was a representative when she was cashed out she lost her economic interest but the court didn't lose subject matter jurisdiction standing was there ab initio and it remained there all the way through the actual oh was the period where terri cry was cast out and  reactivating this case and kleck about seeing that terry clement cash that decided to retain mr australia myself to continue the case in their own name so that the case wouldn't be lost we were in all maybe six weeks but but the important point is that federal rules are designed not only to cure things in advance i mean you really can't always cure things and that's the design to  allow ratification the redesign from august twenty second just to go back to just pull this question august twenty second is when the merger transaction closes and so presumably she was fine but and clicked retains counsel in november twenty sixth so there's about a month and a half two months of us and we the september thirtieth i think it was journalists decision was crucial to determination of what to do with this case how judge ramos decided against us and dismissed that related case this case probably wouldn't have gone for so we were trying it was a traditional economy action basically  case and all of the parties agreed because it was silly to litigate the same motion in two different cases but the important point and i just want to touch on this notion that somehow you can cure these things in advance but you if in the beginning this jurisdiction you don't lose it if there's another point of to come along and take over party dangers yes in this case the absolute paradigm of the real party in interest representing its shareholders which sixteen b is designed to give standing of signal breath in godless versus mandel where i come in and done exactly what the issue we're supposed to do take up the fight and to to if there's insider trading which we think there was to discourage the  apple lady because in ga last the court was was dealing with a similar situation and it found it found its jurisdiction and standing where the plaintiff with he made he didn't rule he put in a footnote that said even if he had the opportunity he would have denied that the benefit of that analysis is there anything first of all to prevent us from dealing with that issue that non cortland that a mistake is what we really look for in the context of will seventeen and how how can if that's right and maybe you can tell me that i'm all about that how can we call the district courts conditional denial of the rule a binding requirement and what it is is an attempt to avoid gamesmanship so that if a plaintive comes in knowing that he's really not the right plant the body's used serving as a placeholder to keep the case alive for one reason or shareholder we made the demand cut the client to proceed with the lawsuit relying on the shareholder to continue the case on appeal dealing with the rule seventeen issues i take it is what you want me yes as opposed to issue related subject matter jurisdiction standing as however you want to describe it while you are in an earlier argument you refer to metaphysical as yours the judge seemed to could well he did he concluded that because he had no jurisdiction he couldn't decide it but the short answer to questions would be very happy for you to decide that in the circumstances presented in this case where there is no prejudices offend them at all this case is not moved one iota from the day the complaint was filed that honest mistake this in fit into this rubric what i'm interested in is the of the question above that one which is we could also decide on that basis against yes you could i don't think it should be used i just don't think honest mistake work fits here this is a changed circumstances and in that if you if you look at the policy behind the statute the sixteen day it's designed to there's no dispute in this case that when klein filed her motion to substitute click as a plaintiff she had already lost her personal stake in the lawsuit months earlier the district court therefore correctly concluded that it lacked jurisdiction at that time i heard the argument she may have lost her personal stake but the court did lose jurisdiction over the original complaint of the facts which was the same when it was substituted is not true i faxed the same complaint there it was the same facts but the only plaintiff in that complaint was terry kline and this court and the supreme court are very clear that when a binding precedent when an intervening circumstance deprives a soul plaintiff of our constitutional personal stake in a lawsuit at any point the action can no longer proceed it must be dismissed at that no way alters the original complaints factual allegations as to the events or the participants i am aware of that case your honor but i think why that should prevail here because events magnetics did not present an article three issue in that case there was a partial assignment of claims both the plaintiff and the assamese had asserted claims and the question was whether or not the plaintiff who had partially assigned these claims could maintain the claims of the non appearing assamese before the court and what the court held was that in that circumstance where there was clearly a case or controversy by the plaintiff in front of the court there was no issue with allowing seventeen a that is appropriate that circumstance is not present the circumstance here where the only  claim there is no standing on that claim or alternatively that claim had become moot months earlier and my friend on the other side i think a moment ago said that you know these rules are always can be used either cure something before or after but you can't always cure something before to be clear in this case click had ample opportunities to cure this problem before klein lost her personal stake in the jurisdiction that's not really your argument you're making a very formalistic what i would call an electrician's argument which is that once the circuits been broken the plaintiff doesn't have standing then the whole thing comes to a halt and there can be no motion even to a man right that's correct and that has been rejected or at least question that's true in a concurrence in that opinion but there's no need to reach that issue in that opinion which is why the judge back addressed it only in the concurrence but i will point this court for example to the valid in case it's a unpublished decision but it was it was it's factually similar which is and therefore persuasive is why bring it up it's also very recent it was two thousand and seventeen it presents identical circumstances to this case where plaintiff had filed suit last ending during the course of the litigation at that time when the other side had brought a motion to dismiss the invalid and moved to substitute the real party in interest in her seventeen a and the court said that at that time there was no standing by the plaintiff to file the motion and the case was a no the at that time it presents very much the factual are affirming the decision below which was a dismissal well just to be to be clear if you're if you're affirming the decision below which was a dismissal under twelve you want a lack of jurisdiction you can address the seventeen a issue before addressing  seventeen a is a it's a procedural issue but it's the same thing to happen in cortland your honor where the court was affirming a twelve b one dismissal and it did so because rule seventeen a could not have carried the lack of standing up but you could do the same thing here rigid form on stuff like this if there is no standing then how can we jump to that question because it's hard and do what we didn't cortland to get to what might be the easier basis for affirming well i think it was exactly what happened in court when your honor and again i think rigid formalised would sneer at what happened in cortland well i think it was affirming a jurisdictional dismissal that's the way i understand what's happening in that case they said essentially that adding a new party would have destroyed the footnote on the last page was good enough well that's what that's what i mean i mean your honor i think if you know if you want to take that rigid foremost view you have to decide the jurisdictional issue either way but the way i understand cortland is that because it was affirming and jurisdiction a procedural issue i'm not aware your honor and again at that seems to be exactly what happened in court and so i think that that is that is possible to do but just again to go back to what i was saying before to be clear here the other site had multiple point section sixteen b gives individual shareholders a personal statutory right to bring a cause of action that was the cause of the case or controversy between the plaintiff in the defendant at that time now click itself was the one that announced the merger in june two thousand it said that three months from now all of the shareholders are going to be cashed out and so no one was better position than click to know at that time that it's that this cause of action might be lost unless click intervene and in the cab case which is a very recent case from two hundred sixteen in this court which is that the statute of limitations was running at that time by the time click tried to intervene in a suit the statue of limitations had already run on have to rule says the court may not dismiss an action for failure to prosecute in the name of the real party in interest does this even apply here that's not why this was dismissed yeah i'm not sure it does your honor and in fact seventeen a one provides that  when allowed by statute a party is ordinarily allowed to prosecute notwithstanding that there's a real party in interest elsewhere so it's unclear to me whether seventeen a was even an appropriate procedural mechanism for this party to have tried to substitute in  at the late date but but even after the merger had occurred klein or excuse me click could have filed its own motion a lawsuit and preserved most of its claims before the statue of limitations had run its not do so we think that we cannot kno e specifically about corp land and steel in steel and cortland the reason that jurisdiction was the issue was because the question was was jurisdiction in class actions for example plaintiffs are continuously changed all the time it's a judge posner said it's a retain feature in derivative actions we could find no case where a court has ever said that the corporation in the derivative case couldn't be substituted in for shareholder we couldn't find any case where said that a class action would have to be would have to be dismissed where there was a willing new plaintive come in to take the case we all know these on behalf of kleck it's clicks money and the statute in dissipates and encourages shareholders to sue on behalf of the corporation in sailor versus bestower i'm not sure that the name right this court held that it's it's substitution should be freely granted and and they reversed the decision of the district court where they didn't allow the corporation to take over guys and said something to the lad to the effect that it would be strange of this be the first time that this court is not allowed  corporation to bring a case in its own name so quick has been in the case there's been no article three issue everybody knows what this case was going on there's no prejudice to them it is no surprise to them so what this is is a very very very inventive argument that somehow or another because representative plaintive lost her shares that somehow the whole case is forfeit when you have what is essentially a legion of cases and many rules designed to avoid exact only that outcome and once again cautioned court to look at house of europe judge sullivan decided where you said that the reason you could was because there was one sentence being changed in the complaint and because there was no prejudice and because unlike in cortland there was your jurisdiction and inception case the party ended up having stand sorry just don't think that's the law and we think that the judge that the ramification is in the court system if now every single time a representative plaintiff loses interest in a case gets hit by a truck or whatever reason the case is dead is the court cannot dismiss a case for not being a real party in interest unless the opportunity is given for the real party in interest to come in we viewed this that was the groundwork for substitution all we wanted to do was to move the defendant