the issue before the court one of the issues before the court is the mounting controversy the district court ruled that because of the contract between the parties the amount in concrete controversy was limited to about forty one thousand dollars my client ready to go at trial relied upon course of performance evidence to argue that those contractual terms had been waived and or modified my client introduced evidence by way of exhibit an affidavit the essence of the evidence was that there was a long course of dealing but there was also course a performance under this specific agreement so it seems to be that while i agree course performance cannot be used to contradict and expressed term of the contract what you're not really arguing that are you here i am not even though you're arguing that by the course of performance that of the term of the contract has been waived that's correct your honor which is a different a different question it's very different so then it could be more than seventy five thousand dollar correct your honor i want to ask you a question about what the district court did you know i'll ask your colleague this to district court dismissed with prejudice that was wrong even if there wasn't a correct amount in controversy was request for i understand but the district court said you don't have the amount of controversy they may be wrong as you argue this but if even if the district court was right it should have simply entered in order dismissing without prejudice so you could refile in state court or of whether there was a breach of contract so sure that's on the merits now the other question i had here is that both parties are limited liability partnerships ala piece yes the record doesn't reflect the membership of the piece and that membership is relevant to diversity jurisdiction we can't there's not enough in front of us to address that but was that addressed at all in the district court it was your  honor and it was not disputed diversity was clear well even though you don't dispute it my question is how can we tell from the record that there's diversity i'm not sure yet there was stole my question because the citizen ship of the l l p or sea is the term and on the citizenship of the members yes and i get soms trills trying i looked all the way through the record to find out what this is the ship of the members is and i didn't find anything so how do i know well my recollection your honor and i'm sorry i can't provide you with a slight asian of my recollection was that the parties were diverse and they made that who the members of the citizenship of the members i'm not suggesting that it set something we should act on today i'm just saying that the record ought to reflect that so that if you if you are to prevail and a district court of this case is litigated the subsequent appellate court can tell whether or not there really is diversity yes that i understand your honor the trial counsel in this case was expecting further proceedings was was not expecting this ruling without a hearing and  i think that's been part of this record but i know it's what you think that you think your opponent here would stipulate that there's some diversity somehow i would expect no member  member of either l l p is from the same state as a member of the other ellaby yes i would expect that stood up against you know then if i get to personal jurisdiction what do do i well the personal jurisdiction was the request there was a request for  limited discovery and citation was cited to the trial drug court the district court and on appeal there was an argument for personal jurisdiction it had to do with sales marketing service prince castle makes an interesting argument that it acknowledges a presence in organ but the argument is in contrast to worldwide sales it's a diminished de minimus presence and that more are you arguing for general jurisdiction over the defendant well that's a that's a good point so i assume what you're arguing is for a specific jurisdiction where we are arguing that yes you know that the get sufficient actual lated to your cause of action where dorgan so as to satisfy the due process clause well that is certainly correct and again i would say that there was one issue decided by the district court it was decided without a hearing the other issues or argued in the alternative but the stress in a british court never decided that issue though of personal jurisdiction didn't reach that those issues the trial court that work wasn't done below the record really hasn't developed for this court the expectation i think the right result and i presented the court with the table i'd like to stress that there was some focus on the larger prayer which was in excess of a million dollars and that's relevant if this case is tried for purposes of subject matter jurisdiction and the amount of controversy but what's really dispositive is the fact that there were goods in him and tory and i provided the court with a table three pages in my briefing but i've identified three goods and him and tory that were finished and they totally to five thousand dollars just these three goods and the importance of that is that what you're really arguing about here is it's more than seventy five thousand dollars oh absolutely just these three goods alone us to understand and frankly if we buy the argument and this is the thing that i'm some worried about it seems to me that your argument is really not that the course of performance is contradicting an expressed term but waving it produced for ready to go at ready goes request so these were authorized goods so whatever that term was in the contract that authorize goods forty one thousand that term was waived or enforcement of that limit was waived and the reason it was waived is they wanted more  requested more and these goods were produced pursuant to their request these were authorized goods there's no evidence that ready to go just made a big involved inventory and had it on site that the evidence in the record is that ready to go was directed requested i mean ask if we move to personal jurisdiction are you suggesting then with specific personal jurisdiction that you really don't want to rely only on the allegations of the complaint but you want more discovery is that what you absolutely and that that request was made to the district court was not to cite it here in request was also made a district court in the hearing was not held the trial lawyer in this case was expecting more process that's evident from the from the pleadings below in the the appeal the briefing on appeal ok thank you morning your honour's patrick morel story on behalf of the defendant appleby prince castle so let me ask you first before you begin the question i asked your colleague at the very least we should undo the dismissal with prejudice judgment to make its dismissal without prejudice correct i agree that it should be without prejudice in the sense that reddy co would be able to refile the action in a in a court that has you seen any other sense of without prejudice only in this that it wouldn't allow them to replete in this in the district court that i guess that's how i was understanding the without prejudice was it allowed them to either refile in another court or appeal that decision in oregon state court because prince castle is not subject to personal jurisdiction going clear to the personal jurisdiction if your personal jurisdiction decided by the court it was not but the record is fully developed jurisdiction yes your honor i should have been more precise ready co would then be able to file suit in oregon state court there would be nothing from the court's order that already from doing so but our position in that lawsuit would then be presumably to move to dismiss for lack of purse or so let's get to judgments question to your colleague the complaint on its face alleges more than seventy five thousand dollars in in controversy correct yes your honor the district court said well i've looked at the contract and i know how much inventory you should have under the contract and therefore it's less and your opponent says well now we buy course we're dealing they waive that part of the contract and asked us to have to do more and therefore our damages are more than a futile claim it may lose but why isn't that sufficient at this really early stage to state to the appropriate amount of controversy i think there's  couple reasons why your honor first the rule is typically that good faith allegations pleaded in a complaint control the issue of the amount of controversy the interesting thing here is that the written contract that reddy code sued under was attached as an exhibit to the complaint and so actually on the face of the pleadings here the amount of controversy despite the allegations in the complaint to be fair the complaint alleges a bit more  complaint is just as in the ledger breach of that contract as written it alleges that by course of dealing and performance the con not that not that the contract was modified but that the clause that limited them to a certain amount of been waived that then a fair summary of what it said no i don't i don't think that is actually in the complaint i think the complaint just pleads breach of contract attaches the the contract to the complaint i don't think it gets into a course of deal of performance when he referenced the forty year history but it does not say that any terms been modified or waived or if if that's right and i will look at the complaint you may be correct why should we at least give them leave to  amend in to district court to assert the appropriate amount controversy well i think one i would emphasize and this came up and ready cause reply brief there was a complaint about the truncated process the way i see it reddy co actually already had two bites at the apple it's ready co's ready caus the master of it's complaint it's ready co's burden to establish personal jurisdiction and subject matter of stiction when it files its complaint here they filed the complaint neither subject matter jurisdiction nor personal jurisdiction was apparent from the face of the complaint we moved to dismiss by moving to dismiss under twelve b wanted told be too ready called and got a second bite at the apple they got a chance to come forward with evidence to show well here's why they're subject matter and  they and they did they came forward with affidavits and etc and exhibits so your point your point is that they were new original complaint but in response to your motion to dismiss they came forward with some stuff  and i guess my question is still why isn't that stuff to use a technical legal term so efficient to so efficient to least at this very early stage we take everything is true give them enough to stay in court well  think there's a number of reasons why they're what they are the affidavit they rely on to establish subject matter jurisdiction is not enough first what they argue in their brief is that the course of performance is an exception to the parole evidence rule i don't think there's any legal support for that but even taking their argument on its face that this can fit into three o three f's waiver or modification i don't think that that's what it is at all i think if you look at it but just thinking it is and is there a legal case jess to it is yes you're on i know i didn't find such a case well i think if you look at the deerfield commodities case i did it to me i think that makes a good but that is that really good case really deals with course performance cannot be used to contradict an expressed term that isn't what they're arguing  is using to contradict they're using it as a wave or somehow this express term and these same cases allow the course of performance to waive the enforcement of the in respect to your honor i don't think that the affidavit that they put forth is evidence of waiver of the term and i think thinking about what this term actually does and means in this case shows why waivers not really what happened here  think stated generously the allegation in the affidavit is that the parties came to some they had this written contract that placed caps on the number of each product and then they came to some other agreement with some other on an identified numbers about what they were going to agree to to me that contradicts the plain terms but i think it what is waiver it's the intentional relinquishment of a known right here this provision protects both are not really arguing whether they're going to win this or not what we're arguing is that as the very fact that they say that there is waiver and this agreement but no i don't think that the mere assertion that a term could be waived twelve is and i guess i guess i'm fab in trouble then because i'm looking at the cases and it doesn't seem to me that in oregon if one says one can waive an expressed term and still go forward under the contract without that express term being involved one can still go forward with the contract and the breach thereof so i think i would have seen that happens in in the cases that are here it seems like it happened and it happens all the time in other cases where some of the expressed terms of the contract are not if you will objected to or worried about or cared about and so people go on and with the contract without worrying about those expressed terms of the contract which are not important to the contract itself well i would have two responses one is i think here there is no evidence of the mere assertion is not enough to meet their burden if they have an affidavit but the af show that somebody on your side said i waive that portion of the contract but i read the c c it says you could modify a contract through course or performance i don't think that this modifies the evidence is that there is any evidence that they modified any evidence that is enough to meet their burden that anything was modified you really don't need your side to say we'll allow such a waiver you can have that waiver by the course of performance by your side that suggests they do not enforce the terms agreement i think in a practical way the actual term here would make that very difficult because what this term does is it says to reddy  co you have to have x number of products and for each product there's a specific very specific number on hand to produce within five days if we submit an order and it also says if you're going to have more than that product on hand then you're responsible for that allocates risk why is your argument not one for summary judgment i don't know why it is one that were here which is sure of stiction diversity jurisdiction it seems to me that in that particular case i have to give every in ten min of the fact to those those that part of the evidence that's in the record and it all goes to the other side if we get to summary judgment you may have a lot of affidavits that will be contrary you may do a lot of stuff but i don't see anything with this affidavit which would not allow them to go forward well your honor i would submit the devil's advocate i understood your honor i would submit that under the supreme court case of mcnutt it was the plaintiff's burden they asserted federal jurisdiction it's their burden to show with competent proof that the court has jurisdiction over the subject matter at all times throughout the action that includes that a motion to dismiss case stage and appoint what would we do what do we do then if i let's go on because i think we've kind of pushed this to the endless gone to the second question supposing i get to this idea about the diversity of the citizenship yes your honor what's your argument there well in footnote two of our brief we pointed out this problem that at obviously they're both fellow c's and so the citizenship is defined by the members and i don't think that's in the record our understanding is that there is diversity between the parties based on the representation on agreeing to it well my way doesn't matter if you agree to it as well i don't know i'm just trying to figure out if you're really going to make an argument about it no argument on diversity is that castle's not just does not have the minimal personal context to beast the subject you're moving to personal jurisdiction yes your honor and if you go to personal jurisdiction at that point in time they say we need some more discovery they do your honor and my response would be that under the case law the only reason normally there is not discovery on jurisdictional issues like personal jurisdiction the exception is when there's pertinent facts regarding jurisdiction that are controverted between the parties or a more satisfactory showing of the facts underlying diversity is necessary here that is not the case here what reddy co was attempted to do is create this hybrid general specific jurisdiction specifically what they do is they take contacts at prince councils what i would submit are minimal contacts with oregon that are unrelated to this case the fact that they have sales of products here the fact that they may have contracts with service providers to service their products in oregon those are unrelated to this dispute about a supply agreement so you try to take a swim you're right yes or soon there is no personal jurisdiction here why should we take that up in the first instance if we do then even though a supreme court of the united states exists there is no appeal the district court never took this up discovery may not be appropriate and you could make that argument in the district court but why shouldn't we vote the court certainly could have been our pinioned should have if not for the subject matter jurisdiction ruling dismissed on that ground so i think your honors are in big precisely the same position and as the district judge was in terms of evaluating all the relevant evidence and here i think the record is absolutely clear they're only argument on the merits of personal jurisdiction is to use non case linked contacts to bolster a claim for specific jurisdiction and the only ground the only case link contact is the fact that prince castle contracted with an oregon company under the pico v weston ninth circuit case and under the i think that's not sufficient and under the supreme court's recent bristol miles meyers excuse me bristol myers squibb case it's clear you can't do that sort of hybrid using non case linked contacts as has these if you are going specific your stiction contacts have to be related to the course of action that's why i was asking your colleague what they were alleging and just to briefly and i realize i'm over my time here but to briefly return to the subject matter jurisdiction i'd point the court to the recent first circuit case insurance brokers west which we cited in our rule twenty eight j letter and that case i think shows exactly why it's appropriate on a contract claim to dismiss under the legal certainty test it just like in this case there were different contract doctrines argued by the the plaintiff there to get the amount over the seventy five thousand dollars limit but the court rightly rejected those on a motion to dismiss in the first circuit affirmed i think this court should do the same thing here thank you for your argument thank your honour's will give you one minute thank you you honor i very much disagree with the statement that this record has fully developed it's not it's a very small record it would be very hard for this court do the work that prince council requests that this court do on this record really and the  turn of the only problem that i really have with that argument is you're the one drafting the complaint you knew you had personal jurisdiction and you knew that i was going to give you every and ten mm and the fact for what you drafted but if i look at the complaint you haven't got enough to make personal jurisdiction and you had every benefit to do it all adds whatever you want to deny give you the intent and if i read it and i go through it and i put all that down you can't make personal jurisdiction and i don't see how in the world you could have general jurisdiction over this company in oregon you want to know what contacts they had with you i mean you don't have to go ask them what contacts they had with you you could say that yourself and so i'm not sure in this case why if i were a district judge i would allow discovery that that question and that issue wasn't decided and in the hearing wasn't held that's part of distin do it and i don't know what you do i'm like judge her what's i don't know what we do in discovery that helps you more you want to know this based on what you've got to plead for personal jurors diction the the difficulty with that is it was a first complaint there wasn't a hearing there wasn't an opportunity to amend it was a very truncated process maybe that's the reason it gets decided on remand i hope that this case is reminded but to deal with those issues on appeal we're speculating about a lot an awful lot it was one issue decided on a very small record that was the amount in controversy and the statute and you see c recognizes course of performance evidence the can waive it also says modify and the contracts that issue authorize x number of finished goods and prints castle directly expressly requested a wide number and at the time of this dispute my client ready to go was holding in their inventory why number at the authorization of prince castle that's the modification a waiver of the term thank you thank you case one six three five two two four is submit it thank you for your argument we'll move to western radio services versus john allen one six three five one