has allowed there are several issues presented i will be pleased to answer any questions the court might have but otherwise i'm prepared to rest on my agreeing with regard to the so cross appeal a issues first look courts and systems deciding the summary judgment motion and will twelve be six motion before discovery actually before the commencement of any discovery on behalf of mr think the question then arises as with us admittedly unusual procedure what's the harm because of the twelve the six rulings which are ostensibly on the face of the pleadings and therefore not dependent upon discovery and that may generally be true but i think there are four things to bear in mind with regard to the discovery failure is prior to pulled her lead again to the court should also consider the later substantive filings and in this case there were several that came later but could not be considered that there is the ability to court said he had already had a chance to do so and therefore we considered a she would not be considered but the truth of the matter is he never had an opportunity to respond to the motions with the discovery  a request for injunctive relief or some other equitable remedy to accomplish getting him to buy that but what you can't do in my view under  license to somebody is already bought one or two join a organization that the person doesn't want to join that's not a  vindication of your rights and that's a legitimate part of the defamation action itself but in my view you can't use lawsuits to sell licenses or to compel people to join organizations particularly when the st amendment gives them a right to associate as they see fit and so in that sense it i n my view is an ulterior purpose drawing a club a money damage lawsuit its proper objective is to get money but if you're trying to use that training rather than as you said to join a club in this particular case it's with somebody you've already sold the license to without that restriction probably if you had somebody who didn't have a license before it's certainly permissible to say we are selling these women could license if you buy one of these limited licenses here in the rolls but what you we also have the six ruling from judge that talk about tortious interference with business relations and again we get into the alleged purpose with relations for the benefit of the souls only new training division and we also  motion for what is a reconsideration rather than for the original order i think you're right there and it's an awkward standard when you suggest th in the case to elucidate his bases for the abuse of process counterclaim alleged as the ulterior motive that it was the put him out of business that in putting somebody out of business is a natural consequence of under certain types of cases like this one and therefore as a matter of law it could not be considered to be allegations in his complaint without tying that kind of claim st of all he did not allege at all right in his response to the real twelve c motion that pressuring him to join the of process counterclaim only in the motion for reconsideration did he bring that up for the st time which the judge did not consider now on the merits discussion of the of the allegations are in that complaint well procedurally your honor this appeal is not about what's in the complaint but what was alleged what he brought to the table in response to the the soda never had any problem with mr childress using his one single life that was under strict id which he persists in two thousand and one to continue giving training on a single computer the issue was that the e t p was nothing more than a three litigation offer to if you want to continue giving training on the team computers the only way to do that is to engage in to buy licenses for educational purposes which are only available now neither stop giving training to classes of eighteen people or he could have joined the e p p where he could therefore get licenses to get education there is a pretty litigation offer of startlement  now you know the question though is even aside from that what is being what are the bad acts that would corroborate or disclose this alleged all theory or motive s there are no facts there are there are no allegations that the so did anything that would be considered an abuse of process that would corroborate that would disclose or reveals this alleged altera motive of asking him to join the p p there's no connection between all of these alleged so called bad acts none of which we agree with but even on an allegation basis there's no connection between bring was to make a complaint with the department of justice with a copyright infringement and later to bring the civil lawsuit and mr schilling said those were unjustified because they were wrong and in fact but we've got two standpoint that's entirely in karate number one number two the same in his brief in his reply brief that's the case but he doesn't cite anything in the allegations in the complaint in the in the consequent doesn't say anything court on these motions in this record level but as a factual matter it's just wrong i mean those allegations aren't there and from what i've been interesting point they're wrong the so never lied to the f b i about what  to that the juror said that he or she had heard that mr childress made seven hundred fifty thousand dollars a year and and then that the mr murphy referred to two jurors who were software of what it was none of it affected his view of the case twice in its declaration he said that notwithstanding this alleged information that was in within the jury deliberation that he didn't believe that mr childers was guilty that he intended that he in fact disagreed with splitting the verdict he disagreed with the jury's ultimate verdict but he said that the reason he went along with it was because he didn't want to hold the jury up to come back on the following monday to continue do the liberation now there's nothing that his declaration that suggests that any of this but there was a statement that the willingness to settle had a negative impact on the jury's attitude toward mr childress and influence the jury's deliberations wouldn't you think sitting on the bench presiding over that trial i'd want to know i'd want to hear from some of the jurors which is exactly what could have happened honor this is this is what we're is before this court is whether or not the district court abused her discretion and if this is not an issue to be reviewed a new no go this is the jerk this was the judge  me i don't think that that can be whether his reason for going along with the verdict is a good one or a bad one is beside the point he was not he was not influenced by the information he chose to go along for different reasons now then he speculate can says that the jury was influenced by this other information and that's all it's that in the conclusory summary form that he did so there's no prim discussed the fact that the reason they were still there with the reason why they were there at all was because he wouldn't settle and you know this bringing in the the allegation that there was some sort of settlement offer was way out of the  ballpark i'm not i'm not so concerned about the claim that a couple of the jurors talk about their software background that's not bringing extraneous information  outside but when you start talking about a settlement offer and the refusal his stubbornness in refusing to settle and that's why they're having to go undergo what was a much couple of weeks of trial and might have to come impact on the jury's attitude towards mr childers influence the jury's deliberations so again he is making an inference or a supposition based on what other people are good effort to expose something that went on in the jury room by somebody who didn't have a lawyer helping him do it again i appreciate your your view of it i would say to you though again that the standard of review here is whether or not there was an abuse of discretion by judge who sat through the two weeks and many many years of litigation to trial and hands on in shock and counsel possibly didn't want to have to sit through another trial for two plus weeks that's what concerns  i i can't comment on what motivations that people have that are not you know i understand that in expect you to but you know this thing i'm interested in now because i don't didn't it didn't come to me with the record what went on there were about five years between the time judge but tahnee got the case and the time of the trial what was going on during that time there was a best of my recollection there was the trial was set to go at one point in time shortly after she got it and then about three weeks before the trial mr childress asked for an emergency adjournment because he was not prepared to go to trial so that by the time we got dates and stuff that was agreeable again i think that might have been another eight or nine months out and then there was another delay because of just the tiny schedule so those are the types of and the primary case that mr childress relies upon it is brief on this jury issue is the beverly hills fire case and that's repeatedly relied upon and i would like to make sure that the court understands it's very distinguishable from this case in that case there was no issue there's no question that the jury was affected the jury verdict was affected by the information that came into the jury and that's because of the juror who conducted in the experiment outside of the the jury and brought it back told the jurors and then he wrote a letter to the  these proceedings were and one of them involve the allegation that he made seven hundred and fifty thousand dollars a year that my client had gone before the jury and said i want you to see that the so has a net worth of seven billion dollars and i make five thousand last year everyone would hit the ceiling and rightfully so that's certainly a prejudicial the act that could influence the jury and when counsel says that the jury's verdict disapproves the cause of action let's say hypothetically that one had a