rebuttal the main issue i want to focus on this morning is the issue of the waiver of arbitration which we asserted in our brief and in the lower court argument and we asserted that the defendants in the case  waived the arbitration provision by taking actions that were inconsistent with the party that would otherwise be relying on an arbitration provision and i  counted no less than eighteen steps that the defendants took in the lower court case that showed that they were not interested in arbitration and actually and you're not you're not considering that state texas litigation you're just talking about the litigation in federal court of record that's correct yeah i counted eighteen steps in our lower court case in the western district of michigan that showed that the defendants did not act in a consistent manner if they were trying to enforce an arbitration provision you do make a good point though regarding the texas case even in the texas case which was filed first which was then voluntarily dismissed even then that case the defendants did not say if you address personal jurisdiction and venue that adds to the waiver of your right arbiter yeah i think the hurley case says that specific that it was consistent with her so you used that that's what you think early  and specifically the early court said by filing a motion to change venue defendants proactively selected the forum in which they wished to defend plaintiffs claims was personal here section a question her i don't recall if it was or not i focused on the issue of the change of venue which was very specific in hurley and the court was very specific in that respect that when you file a motion to change venue as opposed to asserting a claim for arbitration you're making the affirmative statement that you want to litigate in the district court maybe just not in that jurisdiction i was i was filing a motion contesting whether there's personal jurisdiction submitting yourself to that or absent and and waiving well because the the defendant could have at that point raised both defenses they could raise the personal jurisdiction defense they could have raised to the venue defense and they could waived or they could have raised the arbitration defenses well they could have done that all at the start but in this case we have very specific facts which i think are very important and that is that the defendants during oral argument in a lower court specifically told us and specifically even acknowledged that they thought of those consequences that they were aware of that arbitration clause and they chose not to raise the arbitration clause initially because they were afraid of bifurcation and they didn't want to bifurcate the case they didn't want some cases to go to state court in some cases to rebut some claims to remain and they made that conscious decision and the defendant's attorney specifically told us that during the oral arguments of mr horne to make her now isn't it true though that you have to establish personal jurisdiction and order to enforce arbitration cause i mean you've got if you want the district court to enforce an arbitration agreement you've got to show the court that you've got that that you have personal jurisdiction the plaintiffs have personal jurisdiction i mean i don't understand how you could do otherwise well if you if you go to that court and you seek arbitration you're waving your personal jurisdiction are you i maybe i'm not following i don't understand the question i think we're spending an awful lot of time and we're just not communicating here on the question of the significance of the first motion which was personal jurisdiction slash venue if we assume for a second that that does not manifest in arbitration clause then what do you drop back to when i drop back to the answer that the defendants filed in their affirmative defenses that they filed in which case they still did not assert the arbitration provision normally raise arbitration and they answered as an affirmative defense is there a requirement to do so i believe there is a recorder do i find their requirement i think that the requirement is in the rules regarding affirmative defenses and you have to raise your it is i believe number one the johnson case helps us in that respect the johnson case pointed specifically to the idea that the defendants failed to raise arbitration in its answers i think that helps us i think there are other cases as well where see here's the problem that i'm having it and having a conversation with you you cite the cases that that you say well that they help you but you don't tell me whether that's what the case cites johnson and hurley both involve the party having participated in extensive discovery before third in their right to arbitrate if i recalling them directly i gree that there was discovery arrest and discovery seems to be the common threa virtually every case that i can find that addresses the waiver of arbitration is that right i would agree that there have you found any cases where the party didn't engage in discovery and of course here they resisted discovery and they found any cases where the party didn't just didn't participate didn't request hard discovery or participate in discovery and still there was a waiver of arbitration i did not find that case i mean specifically related to discovery i found a lot of cases the don't with for instance like the case of kramer vs cameron which dealt with the party losing  initially a motion to dismiss and then they certainly are returning your point really it's not come from what i understand from your answers the judge mckeague questions is it's not waver and i think in response to those questions that exchange you have not clearly even out of them about any case that says if you don't validate the first instance in your response to pleading that it's a waiver so if that's not what you're relying on what exactly are you are lying now i know you talk about there being different possibilities but we're focused on this well what i'm focusing on i don't i don't believe that discovery is a dispositive issue i think it's one issue that you can look at but there's other factors going hand in everything ok well i agree with you that it that it is but there's other issues that are also contained within those cases to it and i think the issues the other issues contained within those cases you know deal with specifically like again back to early in the early case they also filed a motion to dismiss they went to a rule sixteen conference they engage in settlement discussions all of those things happened as well and in the other cases there were there cases that i cited where the defendant didn't assert arbitration in its affirmative defenses or answers so it's not just an issue of of discovery it's of it's a number of factors that we can look at to determine whether a party has acted in a manner that's inconsistent with the party relying on arbitration and specifically i think in the  case of kramer vs hammond no i'm sorry not in the case but in the in the again in the hurly case the court specifically said defendants did not attempt to enforce their arbitration right and until after the district court entered an unfavorable ruling and we have that in our case as well you know we have the initial decision by the court to to deny in part the motion on data can you i do not hold that against them well the other thing the other time period in here that's troubling to me is the six years between the monsoon and and the i mean i don't see how you can complain about prejudice arising from delay or whatever when you wait six years to refile after you voluntarily at let me answer those two questions first your question first where were you talked about the two and a half years i don't hold that against the ada but i do count the number of months of active litigation in our case to be ten months ten actual months of active litigation in our case before the arbitration defense was raised it was six weeks from the time that the judge did rule or maybe six weeks between the answer in the motion w want you to get on judge doctors question should just tell me where i where do i look to find that the difference between your ten months and what seems to me to be six weeks well i look at the start of the case there was four months at the start of the case where we don't  the issue of change of venue and then there were two months where we dealt with motions for substitution that we that were involved in the case and then there was a period from september end of september two thousand and sixteen until the court made its decision in end of january two thousand and seventeen which is four months there so looking to see what somebody does that's inconsistent with the desire to arbitrate just doing nothing is your case this is doing nothing which is part of the time that you're counting there that we should look at no i don't i don't find any case that says doing nothing but i mean i guess i would disagree that the answer to judges  you're right there is a period of time that the plaintiff waited before refiling their case and i think that lower court judge focused on that as well in his opinion that was one of his primary factors where he he looked at the prejudice issue and that was where i think he was sort of off the mark a little in terms of saying that the plaintiff who had waited a number of years before filing and therefore you can't hold you can't hold that time period against zeta and i agree with that but the prejudice i think we were looking at in this case is the idea that you know we file a lawsuit telling telling that that they were not to file a certain motion until they filed an answer which in effect forced them to answer before they could file the motion that they did what what effect does that have i've well you're right the judge did did order that they file an answer and they did file an answer and in that answer they still didn't  to assert their their arbitration defense and they didn't do that and we absolutely i think they had many opportunities to raise that and did it because the language of the contract all help support your don't i don't think anyone disputes that there is that arbitration clause but in this case plaintiff filed a lawsuit and you would expect of the defendants want to enforce that arbitration clause but they would they would do so at the start is something that's inconsistent with invoking your right to arbitration compel arbitration i have to i have to believe that absolutely and that was one of the reasons we filed this this appeal is  defense counsel at oral argument made that specific acknowledgment and told us the exact reason why they didn't assert the arbitration prevent and do i recall that after that there was an amended complaint that took the issues that would be  denied the motion on the change of venue then well we waited a period of time before that happened then that order came down defendants filed another twelve rule twelve motion the plaintiffs filed a be focused specifically on the element of action that is completely inconsistent with the right to arbitrate i would just like to point out as the court i'm sure is aware that that is one of two elements that are necessary to be shown in order to demonstrate a waiver there must be both action that is inconsistent and actual prejudice and we believe that the district or correctly found in this case that neither of those elements were present focusing as  pointed us to the part that they did at mit it was aware of the arbitration and didn't raise it well i think i'll make a couple of points on that the first is that the the the first motion that that was addressed was the personal jurisdiction motion we've we move past that and then the once a ruling on that was made that's where the delay  occurs the in the court itself in its ruling pointed out that defendants weren't responsible for that delay that it was a matter of the court getting to it and we completely understand that but the court didn't burden us with that delay with regard to that the failure of the fact that we didn't raise it in our motion our initial motion to dismiss there's a couple points to made number one we only brief that there was no response to that motion there was no ruling on that motion we only briefed it so we sui put a brief there that that did not address this and it was in response to a complaint that had over four hundred allegations and fourteen separate counts that does not include the seven individual counts of fraud in that massive tome and it had no distinction between who was suing whom and so we had an inability to determine at that point we just had the soup of claims and allegations when we briefed that in response to our briefing  appellant submitted and amended complaint which reduced significantly the number of claims and also focused where those claims were targeted once we had that clarification then we brought after answering as required by the district court immediately a motion to dismiss and i would point out that we brought that motion to dismiss on the same day we filed our answer to the amended complaint so i think that the that's the best explanation i can give for why it wasn't raised was that at in the brief that we submitted was simply because we were overwhelmed by trying to comprehend what this what this complaint meant and what it was target ok so let me ask you this the the answer and of an affirmative defenses that were filed on november ninth and the motion to dismiss filed on november ninth none of that mentioned arbitration did it yes it did i believe i believe your honor unless we're talking we're talking about the first the answer to the first complaint then you are correct oh i do have i do have the docket in front of me so i can clarify by simply saying we did not raise the arbitration issue until it was in response to the amended complaint until that that was the first substantive motion addressed and filed in response to the amended complaint ok i think i was looking at the wrong  all of that must have occurred in december rather than november correct i believe that's correct your honor and so i would i would point out that while in our answer to the amended complaint we did not assert specifically arbitration there is no requirement under a new rule eight that we do so and not only that but we raised we moved to dismiss on the basis of arbitration clause on the exact same day so even if there were a rule requiring us to put it in our pleading it would be an absolute a gotcha rule if you held that we failed to do that when on that very same day we served a motion that moved to dismiss on that very claim is that that argument that causes the language of the article arbitration clause not to be fatal to your position excuse me i think is the argument that you just made the argument that keeps the language of the automation our language of the arbitration clause from being able to your position is that why it's not legal because it talks about i recall that earlier there was some mention of mediation either in court or in some thing you filed very long ago in the negotiations the appellant made the argument that they had demanded arbitration that we had denied it and they put forth in their pleadings the e mails that they said supported this contention and judge lonnie we believe correctly found that those were not a demand for arbitration at all in fact they weren't even directed at us they were directed at the army corps of engineers so i believe judge moore only correctly found that there was no demand for of attrition mr hubbard let me ask you a question about the  prejudiced component of this that we really haven't talked about this morning as i read our sly decision shy susan s h why it seems to be addressing the prejudice part whether or not the parties actions and require the other party to incur expenses that would that they would not otherwise have had to incur had the case gone to arbitration earlier in shock they're specifically talking about  discovery because there isn't discovery for the most part in arbitration is there anything that happened here that aqua buddha had to spend money for that wouldn't have otherwise been required in connection with the situation as far as you know not as far as i know your honor there was no discovery undertaken whatsoever that would ever have ever said what their what their prejudice is in terms of the expenses that they incurred they have not to my knowledge they have not thinking you know they have argued that they have to respond to motions that were filed as a result of the litigation that they would not have have been required to respond to or expend money responding to had the arbitration demand been made earlier so what responded to every putting aside discovery they're saying there were these motions they had their yeah she responded to and spending money and time i think my response first of all i'm not sure they made that argument but i certainly assume that it's implied the response that they didn't the scene they did they didn't respond to a single motion that they wouldn't have had to have responded to anyway the the they did not file a response to our motion to dismiss our action dealt simply with a personal jurisdiction issue which has to be the first thing you raise or it's waived just one other point that i would like to make with regard to the lack of prejudice is that the defendants when they moved to amend made the point that there was no prejudice here they pointed to the fact that there had been no discovery and thus an amendment could not cause any prejudice they pointed to the fact that there hadn't even been a case management order entered so there were no deadlines for filing amendments depleting whatsoever so there could be no prejudice here this is a two part test we're looking at action inconsistent and prejudice so not only are we in a situation where there was no prejudice we're in a situation where there's been admission that there was not and we but don't we believe that the district court's decision dismissing this action should be affirmed thank you thank  was but the fact that this case involves less litigation than in man assured is not dispositive and in our view defendant's actions were also completely inconsistent with any reliance on its right to arbitrate because defendants failed to raise arbitration in its answer and i think that's important judge mckee and i think that gets to your point i think it is important but you're omitting the fact that they then and in addition to that  on an engaged in discovering you want to just pick and choose between well that they didn't raise an answer so therefore that means as a waiver when the case you're citing addresses the fact that they we what i what or how i interpret that case and i mean is that that the fact that you engage in last litigation or in our case no discovery is not disp seems to be did the failure to raise arbitration earlier result in a party doing things that they would not have otherwise had to do because they wouldn't be necessary in connection with arbitration so if i'm right about that what did you do here that you wouldn't have had to do had they raised arbitration the media we would not have had to respond to their initial their very first motion to dismiss and they filed what was called a motion to dismiss or in the alternative change of venue if they don't raised arbitration right out of the box if you respond to the motion to dismiss part of that they say you did yes we did we did it we responded to the entire motion motion to dismiss for lack of personal jurisdiction that you would have otherwise that read correctly and what else what else did you do well then as when the case moved down if their order was the judge denied that motion in part  know we did say that in in that motion to amend the complaint that we did that we get the complaint all squared away in what was it either november or december and then six weeks later they demand arbitration so did anything happen then in what do you claim your expenses that you incurred were that you wouldn't have otherwise had to incur involved arbitration and i expect just straight up say you know maybe my client was prejudiced in the terms of ten thousand dollars if you want to look at legal fees in that area but that's not that wasn't the focus of our prejudice argument in our brief the argument well as it wasn't that we incurred additional expenses in responding to things that we would not have otherwise had not the thing like a laser what was the prejudice argument the prejudice is is is the prejudice brought on by defendants took a specific defense strategy lost on that defense strategy and only then invoked the arbitration clause what did what did they  they they lost their motion to change venue their last day at the law let's assume for a second as we've been talking that the determining whether the court has jurisdiction is essential in order then to determine whether they can send it arbitrary so i want you just take that in context with with the defendant having filed a rule twelve motion their second rule twelve motion we had a well first we had a rule sixteen conference that the defendant essentially stated that he would like to see less claims in in the complaint and based on the rule twelve motion that was filed i think we adopted our litigation strategy based on the rule twelve motion that was filed you know what you just said right now to suggest that that action and trying to clarify mary a complaint was not attributable to  you for your argument thank you for your written and oral submissions the matter is submitted thank you there being no further