so there are some interesting issues here there's sort of a wide ranging properly of issues with the two motions first defendant a pelleas motion for summary judgment and plaintiff's motion for the film in the complaint but i want to take a step back and highlight the importance of this case sort of in the real world here we have a situation where  company eighteen t had a dying yellowpages business that they sought to revitalize by using a new technology in doing so they bought they did what a lot of big companies do and they they bought somebody that had thought of it first what they didn't do in the process was take it slow to make sure that they knew the technology was going to do what they were saying what they thought it was going to do and make sure that they were treating the consumers fairly are you talking about the merits of your case i am your honor is that really germane to what we're going to talk about today well as far as member who seeks to intervene in the case well way to sway the second seeks to intervene did pira construction file a motion to intervene in this case at any time now the proceed your we you know is a motion for leave to amend but that was your instruction is this thing that's flying around in the air and the other thing that caught my attention was judge seeburg said at the end with respect to amending to bring pure construction in justice also does not require that leave to amend be given in the circumstances here because according to long that's your case the proposed new plaintiff's claims will not be barred by the statute of limitations absent amendment so did once judge seaboard said that the construction and file its own case you know if you got your honor well then i don't understand this you say p r construction is chafing at the bit to get into this case the judge didn't let him in but the judge basically invited  to come in and said the statute hasn't run so who represents pirro construction whose counsel for better construction i'm counsel for and you didn't file another case after a judge the board said you can do that no start by telling us this is really important in the real world and right invited you go for it right will be what why did you and why the reason why was because this is the case that was filed this case had been pending for quite some time although it had not advance because prior to as you know there was another trip before this court where the case was sent back and the ninth circuit instructed and you had all the time in p r construction stills and you were the you were of counsel you were the lawyer for pierre reconstruction during all this time well i'm not sure how to how to respond to that let me i think i'm going to say why did you not file a case on behalf of pirro construction in light of your view that this is a very important case in the real world because we already have a case on file and we don't want to lose the claims of the absentee class members that were pending send if you lose here then why'd then there will have to be  absent class members do not have to come forward and file their own cases because that would just demolished the efficiencies that are created by rule twenty three the idea of rule twenty three is that as soon as a class action is filed  the claims of all the other potential class members are being represented in that action so saying that we need to hold this case for the results of the supreme court decision i'm not saying that american pipe is still good law but it's also sort of aside the point because if this supreme court comes back with a decision that american pipe is no longer a good law then if this case is also dismissed then a new case will have to be filed and that will only go back so far as the statutes in this case allow which is four years the way i understand the record there's no way your client can ever be pursued for these charges which he never paid in the first place am i right about that you you are you are not i believe because i believe the district court believed that but that's not that's not an accurate view by foot status at all by failure to file a compulsory counter claim that operates under state law among other things as a preclusion or some kind of race judicata and so not only are they said they're not going to pursue your client but they're precluded as a matter of law from doing that by not filing the compulsory counterclaim what i'm writing but all we know the only evidence mean that's just meaning they don't have anything to pursue they stand in the shoes of the people who have failed to file a compulsory counter claim weren't paid in the first place and said we're not going to pursue this they don't have any better standing it then the person to whom the debt as allegedly owed do they no they don't no they don't so i mean i can't see any possible way that your client can be pursued for what you're saying you're afraid of him he's interesting he is also going to be pursued for the cos s supreme court's back and forth on why class representatives should not be allowed to be picked off and why there is a right in pursuing class certification that exists on its own regardless of the status of a plane as individual claims and that's because and this is pointed out by chief justice rehnquist in one nine hundred eighty one of the another  principles of class action litigation is that when the plaintiff brings the case seeking class certification he or she is also seeking the right to spread costs among the class or so this this is so that you'll be able to get your client's foot into the glass slipper of picking off i mean the rule sixty eight cases don't seem to be on point in campbell you will the supreme court where there's been an offer of judgment the plaintiff doesn't have anything doesn't have the relief area penny i think is what what the opinions here the yellow pages has given long all the relief he seeks which is why it doesn't have to pay anything and he is no to anything from yellow pages so right that seems to be a particular issue related to mr long situation i suppose it could be other class members who either paid money or who yellowpages is pursuing for a cause but in any event if there was another class member who owed money who had paid money to yellow pages and was seeking that money back then even if yellowpages had made the offer of judgment important in several respects because he's gotten everything that he had he not he is not he spent money in order to avoid his business being harmed by eighteen practices and putting false information on the internet he spent complaint those are the claims for those sums of money which are nominal damages and how much are you talking about we're talking about seventy five dollars for registration of the service mark a nd about five dollars for us registered mail that is not at all what i'm saying and i want to touch on the issue of the debt having again the evidence is that eighteenth he wrote off the debt that is not the same as a discharge and there are private doesn't matter because it's barak ok i think we've now but there are real world facts of having an alleged debt out there and eighty and he's saying that it writes it off is not the same as long getting a judgment in his favor or a declaration by defendants that the debt is not valid it's it's a different thing and that goes goes back in time where creditors now can look at that and say oh you know james so as long photography didn't pay this debt of one thousand dollars to eighty and see if we were to agree with you how would rectify that issue so order to the credit reporting agencies remove this from your your books but that your honor is not something for this court to do that's something for the court but i would like to reserve two minutes and i'll come back and answer that more thoroughly if if you feel necessary good morning may it please the court my name is james bogan and i'm here with my colleague alan garrett i would like to start with the leave to amend issue if that's acceptable to the court and i want to just to cover some of the things that happened below because some things didn't come through as clearly in the briefing as they should have but let me just run through it very quickly november two thousand and ten long sued the wrong party that's ingenious december two thousand and ten we removed explaining that ingenious was the wrong party then we answered explaining again that ingenious was the wrong party and then march two thousand and eleven we had a case management conference before judge c borg we took care of business we filed a motion for summary judgment on ingenious  behalf right before the case management conference seven months goes by in october of two thousand and eleven judge seaboard entered summary judgment and entered final judgment as we all know the case was appealed came to this court this court affirmed the grant of summary judgment to an genia but remanded on the issue of leave to amend seaboard judge order re post three men proceedings was entered on november fifteenth two thousand and thirteen and it's interesting and relevant to the prior discussion he observed that long did not bother to file a motion for leave to amend in the seven months leading up to the final judgment on the first go around he says he said in his order it's not clear why he didn't file a new action against the proper defendants and he directed long to file a motion to amend and he actually said this quote if he still wishes to pursue this action that was what judge said so long  december two thousand and thirteen moves to amend there's no mention of piero there's no mention that he's undertaking an effort to find a new class representative in september of two thousand and fourteen leave to amend is granted over our objection long then waits nearly three months till december nineteenth two thousand and fourteen to file the first amended complaint and that's when something very important happens next february twelfth two thousand and fifteen the parties filed their joint case management statement it's in the supplemental excerpts of record we said in that statement to judge steep c borg your honor we intend to move for summary judgment to kill this case in its entirety and the parties agreed they expressively agreed in the scheduling section they said to judge see borg resolve a summary judgment first and you don't need to think about class certification unless a summary judgment is denied so that was the procedure that the parties asked the court to follow then a week later but again there is no mention of piero a week later february nineteenth two thousand and fifteen we move for summary judgment we take care of business we have a conversation with judge seaboard that procedure is presented to judge seaboard we're going to do summary judgment first and you don't even need to think about class certification unless that summary judgment motion of this party that's floating in the periphery it's less than five pages long no evidence to support it is filed in support of this motion to amend we don't have a declaration from long we don't have a declaration from long's coun l we don't have a declaration from piero we have no explanation of the delay with respect to adding piero and then as we all know in august of two thousand and fifteen judge c borg and summary judgment so here's the prejudice and the court in evaluating these factors denied leave to amend on grounds of circumvention a summary judgment undue delay and prejudice and starting with prejudice first we have a multi year delay where long stubbornly pursued the wrong defendant even after we told him who to sue then you look at pierre oh what what is the deal with pierre a we don't know that much about pirro here alleges that back in may two thousand and ten a y p premise rap walked into the the office of pierre o live to pierre oh about the performance of the advertising product and as soon as the they started delivering the service  o realized that she had been defrauded this is back in may two thousand and ten seven years ago it's very difficult to develop facts about in two thousand and eighteen if this case is remained under two thousand one thousand about what people were talking about in may two thousand and ten since then there's been multiple corporate changes these companies have had to keep this contingent liability on their books we lost the ability and i think this is significant we address this in our brief to have this case resolved with closely related overlapping class actions in the southern district in new york we had similar class actions were filed in new jersey and in the southern district of california we had all of those cases transferred to the southern district of new york overlapping claims in two thousand and twelve judges are deaf he from the southern district of new york denied certification and a very lengthy ruling basically saying individual issues predominate because this case is based on oral representations that's and that's what this case is based on and there's also your honour's the wear and tear of this litigation even after the first appeal case comes back to the district court judge s still intend to pursue this case then the district court grants leave really because this court re mantid on the leave question i think it's fair to say that c borg reluctantly granted granted leave but he did  but then he waits almost three months to file a first amended complaint and then we agree on a procedure in the joint case management statement this is how we're going to do it ok we've got an operative complaint long is finally got his opportunity to file his first amended complaint delay the reply brief your honor pointed out there was no motion for intervene that was filed the motion to intervene issue wasn't raised in sort of reply that's the first time it was raised and in the briefing before this court you get the impression that a motion to intervene was filed so there's five reasons there's five reasons why leave two and then should be affirmed there's discretion we all know that a district court has especially broad discretion to deny leave to amend after he's given an opportunity to amend the first time and that proposition is stated in the capital in case one thousand nine hundred forty cited in our brief prejudice kap  said and this statement is relevant to these facts kaplan said expense delay and wear and tear on individuals and companies count toward prejudice so there's prejudice there is delay that's reason three proposition selector jones in ninety one and the american queen in eighty three roberts in eighty one and it's in one thousand nine hundred nine judge seaboard looking at this record knew exactly what was happening which is that the motion for leave to amend was lobbed in to circumvent summary judgment and finally there's the interest of justice under rule fifteen judge c bork said his judge pointed out justice does not require leave given long's assertion below that pierrot's claims are not time and so there's there is no way i would respectfully submit that anyone can say that judge seaboard having dealt with two rounds of changing the name of the company even at the eighty dollars i guess that he is he's claiming the only thing i can say is that that that claim is without legal merit he had claims for monetary relief claims for declaratory relie injunctive relief the only monetary relief he could get was restitution and he didn't dispute that he did as a judge she were pointed out he argued those facts your honor to basically say that he had a stake in the litigation but he never denied below he never disputed below that the only monetary relief to which he was intitled was restitution and he didn't satisfy the the well known test for restitution and which is that we had to acquire something directly  from the plaintiff as a result of the misconduct such that we were capable of returning what we what we received he stated here that the complaint does request those additional elements of monetary really is that i correct  he does mention them and my answer is is that to the extent that he's seeking to recover those monetary relief under these claims that claim is without any legal merit that's my position on  iraq now let me talk about the some of the issues that have been raised in the briefing about the class issues or maybe if since i only have a four and a half minutes left are there any questions that your honour's would like me to address with respect to newton as we're picking off let me just say that a class was not certified in this case and so let's look at long when a class is not certified long is free to dismiss the case he is free to abandon the case he street to pursue an individual solomon of the case he could have he could have come to us for some type of premium settlement class actions or settled like that all the time cases pits and the like it seems like it could be in play there because the defendant says ok we'll we'll make a representation we won't make it compulsory can claim against you new name plaintive well we will not seek to recover charges from you new nameplate so then we get into the area where it's a transitory claim where the supreme court as we've said that makes it true a transitory because the defendant can continue to pay and only have claims for declaratory injunctive relief there's no record that any of those people actually exist piero who he tried to bring in has a monetary climbing monetary claims are not inherently transitory when you look what he says in his brief he says that misconduct continues to this day ok that means if you accept all of these allegations as true we've defrauded all of these people we've taken their money like piero there are thousands upon thousands of class members out there who today can file a lawsuit and challenge the cause undocked this is not a situation where the conduct evades review like in a pretrial detention context where i'm in the tension like for four days and then i'm sent out and then other people come into pretrial detention and you're saying as subclass of people who did not pay money i'm not aware it was certainly no record evidence that those people exist and i'm not aware that any any such people exist long just see in my experience of the company along i mean he you know he seems to be in any unique position and let me say another pick off a monetary claim through a creative device like an offer of judgement or paying the money in the core well it's now clear especially in the circuit that it isn't possible now especially after a case like  n you can't pick off a monetary claim anymore pitts said pitts basically said an offer of judgment before a motion for class certification moots the claim therefore the claim is not moot and what pitts was saying there is that claim is inherently transitory because it's subject to a litigation strategy capable of moving it that no longer exists in the circuit anymore if somebody knows how to pick off a monetary claim they should tell me because i sure don't know how to do it myself and so this we're back to a very traditional application of doctrine if this case is moot it's mandatory the district court has no power to act it must dismiss and so this case has to be for fit into one of the three exceptions it does not fit thank you very much thank you your honor i'm not sure what to address first but i'd like to address the issue of prejudice i have never been in the situation other than in this case where there's an incorrectly named defendant and the defendant themselves don't come forward and cooperate to get themselves in the case and the other defendant out normally it's a very easy simple thing where you write a short little contract you agree to told the claims against the defendant that's going out an exchange for the defendants coming in here we wouldn't get any of that we could not get them to address that they told you that you had the wrong person is that not correct no that is correct they put that in their removal papers and i called them right away to find out early on you know early on i knew and i called to find out and they said they said things that were apparently not true that ingenue had nothing to do with long at all and that it was these other companies and you have to remember part of part of this case is that long entered into this agreement without ever receiving a written contract so all the contact he had with eighteen and subsidiaries was through the phone all over the phone they told him over and over we can't do that  jenny has the power to do that and so it wasn't until and like i said i would have been very happy to bring the other companies in and in fact i asked for that both in the papers of before the first case management conference and during the case management conference which was held telephonically i said your honor there is no reason to consider this motion for leave to amend that defendants filed yesterday i would like to sorry a motion for summary judgment that defendants filed yesterday i would like to fall leave to amend to bring in the proper parties and his honor said no we're not going to do it that way i'm going to hear their their motion first and so he did hear their motion and then and this is this was part of what they sent me this is all recognizes an independent right to pursue a class action that we're in the cases say clearly chen says very clearly and i think if china had come out before the district court made this decision we wouldn't be here right now because it says there an independent right and it's attached to article three there is article three standing to see class sort of cation when you have claims against the defendant i think you are honestly your argument