who is not a party to twenty of us and how can dan be a counterpoint when he's not a party to the twenty eleven case defendant stone tell us one criterion for a counter claim for one the defendant you don't want to talk about here because at the litigants must be opposing parties in a pending case none of the genes claims against individual defendants can be countered claim because the individual defendants are not her opposing parties in the twentieth eleven case and dance claim cannot be a counter claim because he's not a party to the twenty eleven case and even a few individual defendants were joined by rule twenty they could not be genes of poe's in part because the claims are belong to the corporation timmermans inc and the individuals can't prosecute them and they could not be dan's opposing parties because they have no claims against them there is simply no precedent either yes it does but it's not the only way to proceed there are two ways to proceed in this case we selected one file separate cage and move to consolidate it that is a well recognized practice throughout the country are human foresight site have citations to from a second circuit one from the d c circuit and numerous district court cases that say consolidation for trial won't be compulsory counterclaim if those arguments were made for that yes they were it's a matter of law not a myth that is a matter of even without the consolidation issues these claims can not be counterpoint you can't make somebody an opposing party rule twenty if they have no claims parties i mean no there's plenty to different things rule twenty allows different parties to be brought in but for a compulsory countered claim both parties have to be upholding parties the individual defendants here were not opposing parties of gene cannot be opposing parties of gene because they have no claims against her and you have a case f and even if he could the individual defendants are not his opposing party this is a thing that the district court overlook even if they came in for rule twenty they can't they're not opposing that that the compulsory counterclaim has to be against and the posing party someone who sued you individual defendants never should gene and then never shoot her husband so they can't be your opponent they're opposing parties air go the claims against them cannot be counter claims and i have another rhetorical question how can you have an abuse of process claim before t process is issue defendants don't talk about their want either there i haven't seen any case that says an arrest constitutes process in illinois the compulsory counterclaim issue now if the motions were reflexively denied only because judge zagel preferred to rule on them later or later on in the proceedings and there's no other factual basis for his decision then his discretion wasn't exercised because he didn't consider he didn't weigh and balance all the factors judges usually consider when they decide such motions and if the motions were of the night only because they are filed prematurely there is an abuse of discretion because there are a lot of other and more important factors to consider  the timing of the motion an abuse of discretion exists and the court does not consider all the required factors needed to make an informed decision and a mistake of law is an a the mistake of law here was in the holding the rule twenty was the only way for plaintiffs to proceed as i mentioned before rove twenty is a permissible method but it's not the only method it is not mandatory there is no case from this circuit or any other court in this country that says parties have to go by rule twenty they can't go by rule for citations an argument for say filing a separate suit and consolidating it for trial is an acceptable practice the right miller's quotation we have an argument for it specifically i'm claim page fifty two and fifty three of the initial brief show that we tried to present the two compulsory counter claims in this case by men to counter claim and were refused because at  twenty eleven case we can appeal and send a brief to show you that we tried to handle compulsory counterpoint the way the district court said we should if and we were unsuccessful this was filed in the middle of discovery we have a discovery plan in a record which mention him footnote forty eight of page footnote eight of page forty one of the initial brief i don't recall exactly what the our number is so the predators are still taking depositions jeans deposition has been going on for now three years at the time of the filing of mr hamlin's client's separate complaint in two thousand and thirteen the case had been pending for two years we've u ndergone twenty three depositions and we've disclosed twenty thousand pages of documents there's not the middle of discovery the case of torture and of discovery now the argument  about rule thirteen in opposing parties mr pace in the two thousand and thirteen action is an opposing party under the case in this  asked that i think it's an asset allocation case the court addressed exactly what the addition of defendants in the courts think it is it material that the counterclaim named additional parties besides assets three partners as counterclaim defendants rule thirteen h allowed them to be joined pursuant to rule twenty eight provided there was personal jurisdiction over them that's exactly the situation we have here it doesn't address the addition of dan pace as a plaintiff that's true but rule twenty does address separately the addition  jointer of both plaintiffs and defendants so there's no reason that dans claim of the two thirteen two thousand and thirteen case which was a derivative loss of consortium plane should not have been brought as a compulsory counter that it wasn't the indictment that was the appearance of abuse of process but it was the defendant's actions in inducing law enforcement with false information that was the abuse of process to arrest are my clients could not abuse process by issuing in a day an indictment it's simply not possible so the allegations were made that my clients urged by false information the arrest and indictment subsequently made i think the real issue here is that it was over two years before myspace filed the two thousand and thirteen action and that's the problem with allowing consolidation and with allowing amendment to the counter claim in a two thousand and eleven case as i said we've we've taken twenty three depositions twenty thousand pages of the documents i believe we've told the district court in the two thousand and eleven case that discovery is coming to a close will be getting a your opponent argues that the permissibility of joinder under rule twenty has no impact i'm sorry i can't be your opponent argues that the fact that these additional parties could be brought in under rule twenty as permissive jointer under the permissive china rules doesn't have any influence on the compulsory counterclaim analysis under rule thirteen what's your response to that well i believe rule rule thirteen h were true first the parties to rule twenty and allows that jointer so there's really no reason why they can't be done or why shouldn't be done seventeenth they've been dragging it out because they want the state's attorney and more keegan do their work for again there is nothing in the law that says you either go by rule twenty or you're out no neither a district court nor the defense has given you anything the citations an argument for are more than enough to contradict that contention we we've heard talk about asset allocation asset allocation didn't involve rule forty two which this case is more like to to this two second circuit cases the d c circuit case and the district court cases cited an argument for because if you accept their contention you can throw all them out you can throw out all the quotations from right miller th cite it every day and every court in this country is court issued a decision on a tube or about the reasons i'm sorry this court issued a decision on october eighth green versus united states department of education talked about the reason for the compulsory kind of clean rule which is to avoid duplicative litigation and it seems like that's what we've got here well that's for perth that's the reason we moved to consolidate  second circuit the d c circuit talked about that all the district court cases there's cited an argument for right miller talked about it in reply brief we cited itoshi versus parish turner so when you consolidate for all true it's not and it seems to me that a rule like that that says all you have to do is move to consolidate your duplicative litigation and you get out from under the requirements of the compulsory counterclaim rule well i can only go by what's on the books right now as well as on a book twenty filed a brief and if you're going to make an image what's the rationale for that rationale for what for allowing a motion to consolidate to eliminate a compulsory counterclaim bar for there's there was no rule like that on the books or else we could have done it when that lawsuit was filed there are two permissible methods to proceed under under the construction of rules thirteen and forty two together they could and have always been to find all the others are against separate parties and opposing parties is the key to having a compulsory counterclaim you can have a compulsory against someone who's not your opposing getting newsnight or opposing party and the individual or not cannot if for the reasons we pointed out could not be easy opposing parties of either