mayberg of its right arbitration coaster respectfully ask the court to reverse that decision for three reasons one because by definition an inference from conduct cannot constitute explicit waiver merits you don't get it and then you come back and say wow i guess we'd rather arbitrate right and the judge says that's having your cake and eating it too you can't do that it doesn't really matter what name you will apply to it you look at what happened in helene you have a defendant remove a case to federal court and then immediately move to compel arbitration ok that that's what happened that's very different than the in the circumstances here as judge easterbrook just outlined here you have you put a twelve b six motion in front of the district court you and as a result the district court's taking a look at the merits of the pleading when the case is going forward then you say well we want to move to compel and you withdrew the twelve b you know the style this it will be three venue motion for forget how it's styled but you withdrew it and what you spend a lot of time on in your briefs is explaining why you withdrew it but i don't i don't know that i understand the explanation just fine you got this letter it was threatening sanctions it sadder and sadder but how does how does that show th district court got this wrong your honor two points in that so st it's not just that a lean case let's look at those sharif case in the sharif case the defendant filed for motions to dismiss the waited eighteen months before filing the motion to compel arbitration in this court nevertheless held that the district court abused its discretion in denying the motion to compel arbitration and finding that the defendant had waived that right so it's not that the court has only spoken about them a motion to remove and immediately movi know why didn't you say we withdraw everything after getting that november sanctions letter everything except our request to compel arbitration i don't know how in the world that could possibly be sanctionable or how you could worry that that sanctionable we withdraw everything in its entirety with one exception our requests to compel arbitration i i can't imagine that any judgment impose a sanction for that you have a contractual right of course your honor not only the issue was that they were actually that's the point the i think that's the point you're adversaries making well that's exactly affectively what the district court within it did it not the request to arbitrate yes that they are so why not leave it on the table withdraw everything else yet i can't speak as to the specific reasons that counsel mr turner had decided to withdraw the argument but your austen you know what it seems to me is that you are saying it seems to me that you are saying that coasters qanbar cannot be a very odd argument for a lawyer to nate and that he was tricked by opposing counsel's advocacy your honor i respectfully disagree that there's not an argument there are two separate arguments that we're presenting one is an argument that relates to the written in title meant to rescission and that's where we can talk about whether or not the letter was misleading whether it wasn't misleading and whether mr turner's reaction was appropriate or inappropriate that question does not relate to the issue of explicit waiver that question the separate and apart from from explicit waiver and we argued in the district court and we argued in this appeal that there was no explicit leiber simply because as the law allows the party the st attack to contract in its entirety and then subsequently moved to room force arbitration now your honor is this one as well we're attorneys withdraw argument for numerous reasons many of them unrelated to the merits of the argument and in this case for example it may very well be that mr turner had decided that he didn't want to have this ancient fight in the moment and that he did in that he wanted the district court to st address the  the of the contract before moving to enforce arbitration of a provision include that included in the same contract and on top of that he didn't want to explore those himself and his client to the immediate costs of saying since litigation therefore decided to withdraw that may very well be the explanation but but your honour's is a rd point here the burden of proof the heavy burden of proving that the act of withdrawing the venue argument constituted a knowing and the stop talking about waivers it doesn't really matter whether this is waiver work for to church or simply the district judge saying your litigation procedure is inconsistent with a genuine demand for arbitration there are all sorts of different verbal formulations and relying so heavily to do on the particular elements of waiver is i think distracting your attention really saying that your grief didn't claim that coast you're only withdrew it then you are a slash arbitration claim because bricks structures threatened to argument on the very day that he received the ruhleben sanctions letter that would that that would demonstrate that that was a reaction to the same sins threat in an attempt to avoid another thirty sanctions fight in the moment but that's a separate issue from as i view morning in may please the court my name is stephanie white of your behalf and structures this is a very simple issue on appeal we have here a very explicit voluntary procedural decision by closer dynamics that didn't play out the way that they hoped it was an attempt to backpedal from that decision when the result wasn't favorable to them this isn't a situation where we need to infer anything from ceramics conduct because we have an explicit statement from their attorney in the withdrawal that the reason for the withdrawal was because they did not present these arguments in the st motion to dismiss the fact that they did not under the case law of the circuit waive those arguments is is irrelevant research decided to entirely adopt the position of counsel and doing so was it was a procedural decision the only argument presented to the district court as to why they did so was that her letter was misleading it wasn't that close or in an expense a lot of times and time in its briefs discussing speculative reasons why mr turmel might have made this withdrawal but that was not presented to the district court and it really doesn't matter at the end of the day because there is a heavy burden of trying to withdraw this this waiver so that it's in our opinion a very simple issue before this court that there was an explicit statement of withdrawal and the the finding that the legal conclusion of waiver is actually reviewed to novo in this situation though the facts underlying the case it's so you know the the court doesn't really want to go into the definition of waiver but that the definition is this knowing knowing statement of relinquishment which is a fact there is a fact that there was a knowing statement here and that that that's that should be reviewed for cleary clearly erroneous standard if it were a situation of interpretating the enforceability of the arbitration clause itself then i would agree that it would be to no avail and even if you ask sorry just to be clear on your overarching legal theory of that case reached the point of determining what portions of the contract are and are not enforceable it was a an online printed form contract that the parties filled out certain provisions and they left certain ones blank and one of the cause of the the district court we did present arguments to the district court regarding the enforceability of the closet self but the district court did not reach that issue because the court found waiver so that's still an open question should the district court be reversed that would go back down and we would need to to argue that point