where there is no overwhelming majority reason for reality of the passengers who were from and that the plane was not manufactured so those factors are very different from the vast majority in fact every international aviation case that we're aware of in this case the district were clearly abused his discretion and by violating several different components of this story it's law and i'd like to in the limited time that i have rest on the grief of the various parties and try to focus the core on two or possibly the real issues of time permits and this hunger maybe speaking to one of those those are signing him sheet and resit in signing him the supreme court precedent that says that the court must presume the existence of the jurisdiction and then he can pass on to the evidence you know as clear the district court made that apparent presumption but then actually factor the absence of jurisdiction against heating the case and that's a violation of the senate in principle secondly with respect to she just in terms of an overall lay of the land this court which the district judge not have the indicates it would give it a choice as opposed to some type of manipulation designed to vex or harass the defendant and this case there are strong evidence because of the existence of jurisdiction over boeing here that the plane is jewish was legitimate with respect to the foreign plaintiffs addressing specifically the district court's opinion makes no reference whatsoever to the application of that standard even though it was referenced in the standards if you can it she did not apply it to form plaintiffs and one is left with the unfortunate conclusion that there was no deference given to those matters for joyce at all those two errors of was compel the court to reverse and remain at a minimum for reevaluation of these factors in view of the new law and she and the correct application of signing him in the last major point is this resits zero point which is that because of the unique features of this accident where really no real evidence was found to allow the international committee to reconstruct what was most likely the cause the plaintiffs are candidly forced to rely upon the resits local or fallback cause of action and as a result of that that places the both the burden and the onus on us to come forward and at least prove that the other potential causes of the ac less likely than the one that we said it was a cause which was a cascade of electrical failures that are pointing to boeing as the responsible party by not taking into account the fact that the rez if that the reason the pla primarily driving upon lift the burden of proof the district judge was placing the onus more on the defense and the fact that they would need this evidence regarding other potential causes but in fact it is we who really need  different circumstance in most cases so if i can focus on the side of the understand the argument just because you have the burden of proof doesn't mean that the party or the defendants to the no question with the district judge said was that the players theory of resolute if the look would or was a reason why the location of the evidence prong of the private interest test tips in favor of dismissal and we submit that that's the wrong way to look at it clearly the defendants wish to point to other things they have not articulated which of those different theories by the way they say they believe to be the most likely one to be additionally days which is its own problem but the district court said it tipped in favor of dismissal but burden on them or the reason to transfer the case to malaysia where you know those would be more available i think the point i'm trying to make simply is that the district court said that the latest theory is something that weighs in favor of tipping it toward but i think that the more substantial points that are really waiting to truly independently compel person or the sight of him problem and the not application of the sliding scale of deference in she which again the district court in deference to her to not have the benefit of the time but the sun to come from is is a very material problem here because it clearly says you must presume the existence of jurisdiction and the district judge despite having you know nearly one hundred pages of briefing and oral argument on the subject of whether or not there's a waiver to the we're not through the foreign carrier permit and there are verses stansell issues presented on that to the point where the defense conceded that they were thorny and complex issues decided as was her right not to rule on those issues but what she should not have done then put one arm behind our back and hold it against us which is to say with respect to the access to evidence held by any as an enemy of the malaysian carrier that that would not be accessible because they might not be subject especially true with respect to mr words actions and those of the other american plaintiffs in this case the court notes mr what is an american citizen he's suing on behalf of an american decedent against in part in major american manufacturer his interest district court dismissed mr wood's action along with the other consolidated actions on the unsupported notion that we are going to have a standard causation trial requiring swaths of foreign evidence it's cited piper pa oh piper number one had a true jurisdictional make way in which you had a legal secretary that was representing all foreign family then there were all four investments on the plane plane also crash in scotland it was even stored in scotland there was a reference because the fact that there might be a need to examine the plane there was evidence in that case truly and things to still be on earth to determine a direct product the factor causation issue the carrier also has form we don't have that a probability that's really what reference is about though it would that would be for a jury to determine for us to put on evidence and the expert team report by the way most of this evidence is publicly known even the air france court in a footnote said look i'm not going to weigh evidence one way or the other that and i see my time is almost done so i would like to make just to pull him an area point to final point and that is with respect to him a as an inmate being the notion that they can go and withdraw an article twenty one access damages defense in australia and then they can never in the the district court treated very carefully and applied cell president very carefully allow discovery inform our convenience at massive briefing we held a lengthy hearing here in december and seventeen and that is your core group a very careful thorough opinion that absolutely does not abuse its discretion in any respect and i will just go through some of the items that were just discussed to start with facts about the accident and then i'll talk about precedent and then i'll talk about the foreign sovereign immunity sect issues and the accident i heard things that aren't are just incorrect as cited in the district court's opinion and  the final report from the malaysian investigation the official investigation so it is true in the report that they found it was more likely the human being made that sharp left turn that's right in the report and that's cited in the district court's opinion and the district court to its credit we held the link the hearing and then the district court waited for that final report to come out so that it would have the benefit that and so those the district was able to put that into and have been so that that big left turn that's made was manually they tried the report actually goes through it's kind of interesting they they tried to get out a pilot to do that turn with the speed and the angle that it was done they know the speed and angle of the turn and autopilot can't do turn like that so they know that a human being did that they also said it was more likely than that and just before that turn the communication system i turned off is it not entirely because they're still satellite communication but the communications system is turned off and this is also just as the aircraft is leaving elation airspace that those act jurisdiction here i mean we have at least in the case of mr wyatt right we have an american plaintive right seeking longfield acclaims for an american the seasoned against an american company right i mean why why shouldn't we defer to that really strong interest through for several reasons and it's not just an american company you also have the other defendants who are not hurting companies and an individual first of all on the on  liability evidence issues there mr was no different than any of the other planes so mr lee has a race absolutely or theory and and under that theory he says he can rule out other causes so he needs to rule out these this is potential cause among others that is more likely which is that a human being interfered as opposed to some defect in the airplane so all of those things we will that will malaysian that in fact evidence from boeing has not figured it all in any of this so that they're not going to some aspect of the plane that you know we need to go to the state of washington and learn about that that's not part of the background here everything is in malaysia and then it's not just it's not just control of the airplane you also have me you also have the final report notes that air traffic control waited over four hours longer than they should have to to alert that this plane had deviated from its flight path you have the military seeing it on radar not reporting it in fact taking so long to report it that the initial search was in the wrong area it's in the south china sea even though the military knew that the plane turned in the so every  here is currently being represented in other proceedings and number of them are in malaysian proceedings and in the malaysian proceedings they list out all these other defendants all these other entities that could hold some  that the most recent opinion but it is very well done that was as helicopter crash in the north sea relatively small accident when you think it played in the hands of evidence in the parties and whatnot this case far larger far some of them represented by motley rice it's august day they one of the malaysian court to wait for the truth for litigation here to determine whether it was going to proceed in the u don't think that would be true with human beings and you have a number of government actors for example you have malaysian investigators and civil investigation then you had a malaysian police investigation which went to the pilot's residence and seized material the evidence doesn't travel to an american courtroom i mean in a lot of accidents you have that the flight data recorder in the cockpit voice recorder those things don't travel you might get a transcript but like the boeing investigators who provide technical analysis on things they did not receive access to most of the documents of the investigation so i am not sure that what happened in malaysia can just be transported here  opportunities act question and i don't i don't read the district court opinion saying one thing or the other about that but then there's the question of can boeing suit the airline which is pretty common in these aviation at that sort of different types of places most of the plaintiffs have no connection to united states at all in fact a number of the plaintiffs can't even establish montreal jurisdiction so they have no no way of keeping where you purchased your ticket and then if you had a destination in the u s or something like that which of course that's not the case here so they don't have any of that you don't you only have mr wood who they make the argument that he had on the sile in the united states even though you've been working for quite a few years overseas so he's he's using that route and then he also made an argument which a couple other folks made that sort of how they purchased their ticket should count so he used an american express related portal through i b m and they said without a count as having purchased it in the u s even though he actually was in malaysia when he did it and then there was another person i think who refused again they were in the u that they do something they got rattled through orbitz and chicago and they try to say that that should count under much else that's what they do there the district was very careful in looking at each individual and with respect to mr wo  and he agreed that that case should proceed in france because and liability mr wood is no different than anyone else in terms of where the evidence is going to be yes and damages he's going to have  more evidence that's in the united states and then but that's just private interests that we get a public interest that the malaysian interest is overwhelming it's the national carrier of malaysia they lead the investigation there are thirty eight dollars malaysians on board took international flight and just after it leaves u s airspace it makes some turn and then it goes out to sea crashes and the investigation is led by the united states there are allegations of potential promote conduct by the  crew that was based in the united states no one would think that that litigation that the most public interest in that litigation be somewhere else and i think that would be true even if it were an airbus airplane you should use courts for a foreign public interests the same is that weighs speaks to this a piper talks about the interest of regulating the manufacture and it said that the supreme court said we don't think that interest is fission and other courts have pointed out that and this is certainly the case you know these are pointers all around the world operate all around the world every other country that is flying on these airplanes regulating these airplanes has an interest in their save operation and design and so i think there is there is an american interest and that's acknowledged but the foreign interest in safety is is likely to be about the same in most cases there's a little bit of extra interest for mr wood because he's an american the district would acknowledge that but in the herb because the real question is whether his relatives represented as whatever are malaysian and not and they're not there in the united states was and the district court to say that yeah what's your answer to i think that  i think the most reasonable way to deal with that is probably to recognize what they otherwise recognize which is there is a sliding scale and so if you get the most deference if you  while and one way that i thought about this is the same he had a car accident when he was in malaysia and he claimed that my mind is an american car and the fact that there is a police report is actually somebody else's driving it you know that there was some involvement of somebody there and and that would seem entirely foreign it would seem reasonable and that would be a product of the fact that he's living and working overseas so i think that this report was entirely reasonable and in not giving them the maximum possible deference and then on the representatives you know this did occur and hyperaware you had you had a legal secretary who became the admin the ministry tri there should have been no taking off from the top level of deference because in a minimum in a motion to dismiss you've got to defer and decide the fair inference is in favor of the nonmoving didn't hear there was evidence that of an intention to return to the united states for the wood family and some of the other families as well with respect to access to evidence i believe defense counsel said that you know most of the stuff was in malaysia but what's not mentioned is that boeing in his declarations that it has the maintenance records were many of them in his records and the training factors our position is that she could not have made that conclusion without miss mistakenly engaging in the sonic analysis because she found that and the s n a and they would not be accessible now one of the questions a court asked was whether or not malaysia most of the claims filed there are about post accident infliction of emotional distress by feeling to locate the downed plane in time and so those are not the main issues to be tried the main issues to be tried in this case are ineluctably a resits a scenario and that's a scenario in which both sides have equal access to evidence especially if any as it may be are in this case and what boeing has the district judge's ruling really did not fairly balance the factors because of one the sonic an error and two primarily the failure to give the sliding scale of difference and measure that was to do with family and as well to the former players for those reasons the court cannot have confidence in the balancing