the next matter on our calendar is the wave studio verses general hotel management limited  at the podium in the on the microphone so we can actually hear what you're saying if you think that would be of benefit copyright infringement taking place in the united states subject to american law and perpetrated by a group of defendants the near entirety of which are in the united states or north america the district court's decision below which was handed down without benefit of oral argument despite requests for it by both parties you did the in congress result that american company the appellant a new york hello c albeit owned by a foreign national is now being forced to go to singapore a foreign country to enforce its u s copyright claims against a singapore company and if successful there come back to new york and litigate those same claims the argument is that this isn't an american company it's just an american company on paper you united states it's not your honor but its purpose is to a just and i think he had any employees or assets and the answer was no you're from the united states assets is yes actually your honor it's been the infringement claims severance this court's jurisprudence on severance in the sever and transfer doctrine from windham associates cited in our briefs is really meant to focus on judicial economy and making sure that that that is furthered that is not further here because the court merely sever in order to avoid having to fully address the adequacy of singapore as a form because ultimately this is a claim for us copyright infringement against mostly american companies would you seek authorization from the district court under rule fifty four b to appeal the severance order i'm concerned about our jurisdiction here to address  kind of unusual step it calls into question whether there's been a final judgment in the district court could you address that concern of course federal rule of so procedure twenty one provides the severance that the court exercised here every circuit with the exception the fourth eighth in federal circuits and court in fact this this circuit was i think the first circuit to recognize that a severance under rule twenty one in fact creates a separate case for the purposes of phonology an appeal ability there's no separate case number right that's correct but there isn't the rule for this materiality an appeal billy is one of practical effect not just formality and which we to avoid addressing the first prong of the adequacy of the alternative forum which is whether or not the defendants are susceptible to service in singapore so if she is correct and the severance here is not a final unappealable order they did not create a separate action then you've got all the seventy plus defendants in the case most of which are more a north american or actually american and are not going to be susceptible to service in singapore for a question to the singapore supreme court so and that's not what the court did at all here in fact if the court might have tried to reserve just that issue of copyright ownership but it didn't do that in fact the court first did not decide whether singapore law even applies it reserved to that issue and second it at joint appendix page thirteen in the apartment twenty three ninety one the court makes clear that it is dismissing all claims against all claims which means the entirety of the us infringement claims that the docket sheet suggests that the plaintiffs claims against remaining defendants in any cross claims that month the defendants continue to be stayed in this court remain in the court photographs is that correct that is not totally correct your honor in fact there are a number of defendants who received the photographs from we don't know where we've never actually been up offered the opportunity to do discovery to find out but in fact there are a number of defendants that receive the photographs from we just we just don't know so that that is incorrect they didn't they didn't necessarily receive them from g h out correct correct they didn't necessarily receive them from j h m and why would they use them if they were  promoting him well because g m is is a hotel management company the they would use the photographs before their artistic value in the depiction of the properties that that they cover so they're using them for their artistic to book travel to various hotels to be your time is how most expired why don't you turn to the merits of the form on convenience decision without beyond go beyond severance in the time remaining absolutely so the the court abused its discretion for a couple of reasons first it did not fully analyze or really at analyze at all whether or not a single poor court could he could and would hear a case for aircraft that the alternative for him is adequate if it permits litigation on the same subject matter that plaintive seeks to litigate and we've held that analysis in the antitrust context where it was not necessarily that the foreign court was going to be applying u regime it does seem that singapore courts will adjudicate a copyright a claim of the nature of copyright infringement why isn't that why isn't that adequate and what respect is that does that fall short it fall are because the question is not whether or not singapore has a copyright statute and can adjudicate claims of copyright the issue is whether a simple court can or will adjudicate a claim for copyright infringement that occurs in the united states subject to american law and there's no question that a single court that is that faces this case if it were filed in singapore would have to apply american law in a number of places first to decide well whether or not american or singapore law applies to the copyright ownership threshold issue but there's no dispute that it would also have to apply american law as to the second prong copying and third and as to the remedies so therefore argument is the singaporean court would not be able or would be unwilling to do so either one unfortunately record is completely absent of any analysis whatsoever not a single statute not a single case not any indication whatsoever that  be started absolutely and in fact that's my my second point as to how that the district court abused his discretion by failing to have a conditional dismissal like this court ordered and founded an abuse of discretion in vs honeywell case in that case it was an indian company that contracted with a honeywell to do some work in india believe that honeywell breached that contract sued here in the southern district of new york and the district court said well the delhi high court is a perfectly capable court to decide a breach of contract case governed by indian law true and this court said we're not in that you would not disturb that initial finding but because the indian courts are so clogged and  you know come back if it doesn't work for that sort of well the tent tended to judge the next question did you request that kind of condition of the district court in the in the court below yes no your honor because either so that should not be a prejudice of here i'm always you know since we are an abuse of discretion review it's interesting always to know what arguments and requests you made at the district court of course and i will respond to that your honor but this court should do that it is an abuse of discretion not to have taken it into account the statue of limitations issues that the discourse order actually created and didn't exist but for the dismissal that was unconditional this court should then make that dismiss unconditional and what is the condition that you since it wasn't a proposed below what condition precisely would you propose the condition should be that the dismissal is conditional on one  single court accepting the case or are not applying a statue limitations defense in a single case and the statute limitations being told if we have to refile in the united states thought you were just going i thought you were just talking about whether the singapore court would be willing and able to apply us copyright law which is something quite different from the statute of i mean that i suppose that includes the statute of limitations but it's not limited to that so i'm a little confused about what condition you're urging us to apply right that the condition i apologize for was unclear on the condition is that the statute limitations under u s law is told both in a case filed in singapore as well as if the singapore court turns out to be an inadequate form or refuses to take the case that starts an imitation is told here in the united states as well again in a foreign court have a right to not take the case i mean they have a right now not to accept case brought according to singapore law we have no idea and that's the problem in the record below that it was never brought up despite the fact that that fact up that this is a us copyright infringement and a single court can't hear it on a number of occasions in the briefing below it was never addressed either by him or the district court and your description of the condition you would ask us to impose you said or if that singapore court turns out to be in adequate forum that of course encompasses many potential aspects of this decision so again this just highlights for me the problems with not having requested a specific condition of the district court who would have been in a position to shape it more clearly but your focus primarily on the statute of limitations and tolling it or just  limitations both as a if the singapore court does accept the case and that it would be told as to that case filed in singapore as well as if that didn't happen and the court reject filing date was preserved as to all but one defendant we we know who that defended his and so this court should should safeguard against that problem the reason was brought up in the first in the lower court of course the runners again appellant brought to the court attention and g h m's attention that a singapore court can't actually address a case of us copyright infringement which was never addressed by j h m or the lower court so there was no need to discuss this conditional dismissal because there was with me here today making her first appearance before any court of appeals is my colleague abigail or more one of the things that was mentioned a few moments ago that is particularly important is that this case is an abuse of discretion standard i  think any fair reading of judge bell's decision twenty two pages long clearly indicates that she went through all of the different elements to make a finding as to the adequacy of the singapore court to hear this case she did ok and it's not a requirement that the singapore court as one of the as one of the i'll confess i forgot which one said earlier it's not a requirement that the singapore court hear the case under u s law it's if the adequacy of the form has to do with whether or not singapore has a legitimate court system that will hear a copyright case they have come to the choice of law that they will have to make that is exactly true they will have to do that i also want to talk a little bit about that this notion of condition for hearing the copyright question but a very bad court for hearing infringement because of the pendants or all of the potential infringing ers are all here there's no way to separate regard to both the ownership threshold issue and the violation that's in singapore once that's resolved the individual cases of infringement by these other defendants that gets decided here in new  case between wave and him all of the evidence relating to that issue is going to be in singapore the photographs were taken there they were used by him in asia and out of it singapore office and the hotels are all in generally in that area although some of them are in other parts of the other parts of the globe but it all gets back to the abuse of discretion standard which is the judge went through all of this and made a very well reasoned decision but more importantly when we get to even hear oral argument in this there was no oral argument on the motion to come on the motion for summary judgment it was decided on the papers on the summary judgment if severance the the summary judgment motion was decided on the papers doing i've been doing this since one thousand nine hundred six but for better or for worse the district court's both in the southern district in the district of new jersey where i do most of my practice here less and less oral argument it's just the nature of just a court practice particularly in the last ten years  and so that's just what just what happened what's happening on convenience was put before the court by you yes it was yes it was it was one of several different elements of a of a motion for summary judgment the judge didn't have to reach any of the substantive issues and he decided on f n c grounds that's exactly right your honor she included a footnote saying that the parties requested oral argument but she did not find it necessary that that's great knowledge the request yes yes you honor one of the things i want to i want to get back to is this idea of holding back something were conditionally dismissing the case it was an issue not raised before the trial court but more importantly the reason why my learned adversary wants a condition attached now is he's concerned about a statute limitations defense should this case go to singapore and he's right to be concerned but it's a problem of his own  of waves own making for non convenience was asserted as an answer as part of our answer as an affirmative defense and then in the decision that judge sidel said she mentions in what is  all read it's near footnote it's near footnote ten it's in the section labeled delay in addition in february two thousand and fifteen g h m alerted plaintiff in writing to the potential for unknown convenience grounds for dismissal and in april two thousand and fifteen g h and each says this is an american case we're not going to hear that that's different issue your honor no no my question is you come let's say that happens and comes back here does that has the statute been running all this time attach that condition but that's what i'm asking i think that condition that condition i don't think we could object to however that condition assumes that the that that that the singapore cait singapore court refused to convenience issue adjudicated before any statute limitations would run in singapore it was in our answer they certainly could have responded to our answer with a motion to dismiss or a motion or motion to for summary judgment  point your honor this is a problem actually not at some point at this point your honor this is a problem of waves own making and for us to first adjudicate this issue when it was not raised at the district court level it is wholly improper only improper and prejudicial i believe one of the members of the panel mentioned that it's it's very hard now for me for the court and particularly now for me to do you respond to these potential limitations on the dismissal when there's case to the statute of limitations said we decided to affirm district court not that i recall your honor i think there was some mention on page forty two of my adversaries brief about this issue but it wasn't about a tolling issue it was about a condition it was about a conditional grant of of a conditional grant of the dismissal which is a wholly different wholly different thing we think and you say we have the power if you think that there should be an amendment  to covers any any problem and men meant to be the order of the district or is that something we should just something we can do isn't something we should do or is it something we should send back to the district court to rule on for your honor frankly i don't think this court should do it and i don't think it should be waived sent back to the district court to be done the time to ask for that was before the district court that didn't happen and it's a harsh result but it is the proper result because at the end of the day your honor there is case law on this in this in this circuit and in fact in every appellate court for which i've appeared that if you don't raise an issue before the trial court you don't get to raise  level course that may or may not be a harsh result it just depends what the singapore court incept doing yes your honor and that's actually where i was one other point i wanted to make we don't have any findings or any discussion or any presentation in before the district court or before this court that there is a statue of limitations problem in singapore or that the singapore court won't take the case for any reason good bad or indifferent all we know is that we were part of you for the motion to dismiss that the court was adequate i did argue that and we do know that it's adequate because singapore it meets the standards set forth by the circuit in the other circuits which is that it has experience dealing with claims of this nature it's a well regarded court frankly singapore is one of the wealthiest countries in the world largely because of its actual system in the rule of law and that jurisdiction so the notion that singapore of all places couldn't hear what is honor i can't speak to the issue of in additional salaries here or in singapore but i can tell you that my knowledge of the singapore judicial system judicial system is that it's excellent and that's what  name i hope you'll help me get it right not a singapore court could or would address an issue of a us copyright infringement subject to american law just a court would be required to do that as long as the court is adequate in terms of a functioning  a body of laws that are recognized as comporting with the rule of law it would be in congress however your honor to say that we would have to bring a singapore claim for copyright infringement when the infringement may not have happened in singapore but it did happen in the united states so we have no idea whether the singapore court is going to be adequate and again going back to the case this court has found that it is it was an abuse of discretion which was not raised in the district court quite frankly to not have the dismissal be conditional it should be conditional and the other reason we didn't bring in the bring it up in the lower court is because the statute limitations of having to refile in the united states could not have been  foreseen because there was no discussion whatsoever about being able to sever g h m n only kick out that one in the case we had eighty defendants most of which are american only ground in which you find the  the alternative for him both because it of the sept ability of the other defendants to service what about the other factors the both the private as well as the public factors were improperly weighed as well and it was an abuse of discretion as well  i'm happy to address those if the court would like but we adequately we've we've dealt with them in depth in our briefs but we did i will say in the briefing we did in fact ask for this tolling there is a significant section in which briefing in the briefing on appeal but not in the district court correct correct yeah again we were not able to predict that that would happen because we didn't know what the court was going to do and to address the issue about form one convenience and that they had raised it to our to our attention that's true but that presupposes that was right which it may not have been this was a case for us copyright infringement where g h had a lot of activities within the united states such that form one convenience may very well not have been an appropriate and we believe was not an appropriate basis contested it right we did we did so in the district court did you do any raise the statue of limitation no again because we raised the issue more fundamentally that singapore court wouldn't be able to hear this case both because it's also possible to continue and say but if you but if that is true well actually i'll submit just on that unless the court has any other further questions thank you very much thank you both thank you very interesting argument