name is joshua boxer and i represent the sixty one plaintiffs in this case i'd like to try to reserve about four minutes for rebuttal if possible your honour's have been clear that friend judge real likes to do these kinds of things and so i guess my question to you is if if he was quick if you will and act you know this because of the first and second amendments were de minimus and want to agreed upon in what way would you change the complaint to make it fly regardless of who  and factual they are and i think we made clear in the motion for classification filed two days after our opposition in the forty eight declarations filed by plaintiffs in the comprehensive declaration filed by our automotive expert that there are indeed additional facts that we can allege that would support the claims for relief that would give you better you better because if you don't you know what's going to happen we certainly do your honor and i haven't seen them in the great detail yet so i would say to your honor that we are now in that situation we've discussed in which factual deficiencies have been identified to plaintiff's counsel and as such it's obviously incumbent upon plaintiffs to file an amended complaint to remedy each of the issues identified by by the court so bottom line from your perspective you need to do still a more work but it would be futile absolutely there is certainly no finding of futility by the district court here and this court's been clear that dismissal with prejudice is an abuse of discretion where the district court fails to make a determination that the pleading could not possibly be cured by the allegation of other facts your honor as we've briefed these issues we believe comprehensibly and rather than repeating my briefing from the welcome any additional questions from runners before reserving my time we thank you for your wisdom and here let's hear from the other side good morning your honors philip and all and i am appearing on behalf of packer inc and in len kenworth and your honor just for the record counsel for westport and i we have agreed to equally share the ten minutes allotted to defense  i have five minutes they have five minutes to find it almost never works but good luck and it is late in the morning and my stomach is there needs to be work that needs to be done but in the record specifically in page eleven it's the declaration of mr boxer that was attached the opposition to the motion to dismiss and he specifically said that he interviewed over a hundred truck drivers and also representatives of various trucking companies and that's put into his opposition to the motion to dismiss and also in our  supplemental excerpts of record pace twenty four the motion for class or to the cation lines eleven to thirteen specifically say that they did a thorough they conducted a thorough and detailed investigation into these claims sounds like i just at least give you my thoughts i please you're probably going to win on all this i mean but but the reality is you've got a badly drafted first complaint then you've got law isn't that what has to happen here well not necessarily on it because he had the opportunity to amend the complaint putting the substantive issues into the first and second men and women at the joint stipulation was very limited was it not that's correct but we did not force them we did not prevent them to speak to not substantially amend that second in many complaint they did it on their own but there's no finding of futility here real and i'm not persuaded futile and you heard my question in the prior case in that case personal you're not feeling your client but is speaking for myself i see no reason in this record to give them a chance to amend and that's why  challenged and they better be specific because as judge smith indicated the best they can hope for is one bite at the poll and amendment and mr taggett will probably argue a little bit more on that is you're right judge real didn't specifically say that there is going to be there was a futility of amendment absolutely i agree with you on that however in his order page on which is page eight of the record he says the factors plural ecological rights do not support giving leave to a man so apparently by using the plural in factors he did consider more than one of the factors illustrated by ecological rights and i agree with your honor like i said he did focus in on the failure to properly amend in the prior to versions of the complaint but based upon the use of the asked if he doesn't tell us sometimes and he didn't tell us in this the morning of may please the court craig tagger for defending appellee westport fuel systems inc i'm not going to sit here and tell the court that a lot of district court judges would have granted the two men here and i'm not going to say that there were any changes to the prior times that was the lead statement no doubt your honor to have to address the issue about whether he is whether he consider futility does mention futility in his order he does say that the same deficiencies were present in three prior versions of the complaint as mr but no he stated he does state that the ecological rights factors as a whole do not support lead to a man here but i think the most important thing here is that this court can would like to point out your honor that this isn't a consumer class action despite the fact that there's certain references of that in the complaint this is a this is a case is brought on behalf of sixty one separate truck drivers almost all of whom least thirty trucks from the original purchasers and those original purchasers aren't mere distributors of the defendants their trucking companies that have no affiliation or connection with the defendants there's a couple of things here once once once the defendants filed their motions to now i didn't anything substantive from mr boxer today as to how he's actually going to do that and that with no one knows nothing just for myself counsel i've no interest in digging into the facts to figure out whether he could sufficiently to survive another twelve b six from judge real that seems like an argument that you should go before him and argue it again fair enough your honor there are there are a couple of i think pretty big blatant legal deficiencies to their claims that i would like to know recognizing that the court may determine that's best for judge real to decide a view some time and tell you that asking us to amend the complaint would be futile it's i mean when one thing of particular note your honor is the breach of expressed warranty claim you know they attach this warranty that they claim somebody you know supports the breach warranty claim and will just attach that to many complaint that solves the problem well this court can see that on the face of that document it's not directed to any of these names point if this directed to an entity called southern counties express we i think it's fair you can tell we agree that the as it as it currently stands it doesn't fly the question before us though is drilled in making finally regarding futility the previous two amendments were non substantive one of which at least you consented to stipulate two parties were added the question is can he replete in a way that survives i don't know i really don't know but the reality is we're not going to do it and the question is what does our law requires to do in the circumstances i think you know the answer yeah i recognize that your honor i guess the only the only point i would make and again recognize this is an uphill battle is that there is a blatant legal to the legal deficiency to any of their claims and some of them are present in the briefing