your honour's start off with we agree with apple e and one of the first statements made in their brief and that is this case involves a straightforward application of the end time judgment going to spend most of my time this morning on that issue and the really  ation issue obviously happy to answer any other questions that may arise that have come up in the briefs but this case your honor we believe fall squarely under smith versus bear court which has three principal teachings that i think control the outcome of this case number one litigation exception is to be viewed very strict and narrow number two that when issues of preclusion come up from a prior order which is what this case raises in the words of justice kagan the bailey wick of that making that decision falls to the state court the second court and number three if there's any doubt about what the federal court should or shouldn't do that should weigh in favor of letting the state court proceed with the case and hear you honour's we think the district court failed to follow these teachings of smith and we think that error is plainly evident on page eleven of this order and if i may i'll start with the two passages we think that show that  a fourteen eighty six for purposes of the record the first is that the district courts it found that equity trust conduct after he had already issued its order did not amount to waiver of the right to enforce the form selection clause and here the district court's order was january thirty first of two thousand and thirteen we've then we'll get into the timeline it set forth in the briefs with respect to laura hampton filed a state court action july one two thousand and thirteen we went through two thousand and thirteen two thousand and fourteen two thousand and fifteen and then the issue came up of judge eckels order not being allowed as being a basis for us not proceed and regardless of whether you agree or disagree with the state courts ultimate decision the point is the decision to determine whether equity trusts had waived the form selection caused by state court conduct was the state court's decision to make and number two the federal district court could not possibly have made that decision based on that conduct because that conduct had not yet occurred and so the district court's order of  lot january thirty first two thousand and thirteen on which it based its injunction could not have decided the issue of waiver and yet in its injunction order it states that the district court says it did not find that equity trust conduct amounted to wa so that's point number one point number two is the district court to get to that issue you addressed this under the concept of claim preclusion we believe and i think the authority support this that the proper analysis is under the context of issue preclusion and i'll confess getting those two mixed up i'll probably do it more than anybody but i think it's important in this case and this case sort of illustrates the difference by looking at it from a claim preclusion standpoint i think the district court and  anything that either i did decide or related to what i have decided is within the scope of my work and that may be proper for claim preclusion but that's not the right analysis under smith versus bear it must be the same issue that was decided to get to claim preclusion as the court states in its order it says the court's prior action concluded with a final judgment on the merits and that's the key language on the merits because the court's final this decision with civil procedure forty one b plainly states it's not a decision on the merits it's true as a matter of fifth circuit case law we cite to vasquez and other cases where this court has said that a decision on venue is not based on the  you stop there first second i agree that the tax of forty one b would make me believe that it was not on the merits but when i read our case in on deaf ears it causes me to have some consternation on this and i'm wondering if my first question then is do we when do you when if you can establish waiver if that they were the court was wrong and waiver without regard to whether it was also wrong on issue are these multiple options or do you have to have both to win i think we went on waiver alone your honor transfer that it's ok because the issue preclusion seems to get gummed up even though the text seems to agree with you our pinion in th applied it was the same specific issue and so i think although it may use the term claim preclusion i think this is one of those cases where it really was more of an issue preclusion analysis than a claim preclusion analysis but the back to the court's  question i think if the court if the issue preclusion versus claimed hang up becomes an issue i don't think that necessarily means we do not get the injunction undone or vacated because waiver alone is something the court clearly under smith page six which talks about toughs and murchison and a lot of these cases where the issue of where the words claim preclusion may have been used but i believe it was an issue preclusion analysis that the court ultimately ended up going through it duffy number one setting aside the issue of waiver i don't think there was any of the evidence we have here in this case about the two and a half years in state court waiting to lose i'm a judge that's set that aside so that's my first argument on that the second argument is transferred or moved to another court the second case comes along and i don't think i think it was the exact same claim under that exact same clause here we don't necessarily have that because we filed a texas securities that claim in the federal district court in our initial action in the state action we came back and found not only a texas securities that claimed but a host of common law claims so you may have you know there's the possibility of a different issue concerning the scope of the for selection clause further what we have by that time which we didn't have when we first got the district court's decision back in january of two thousand and thirteen is a direct case from the ohio court of appeals that specifically says the state law claims that laura hampton filed in the second the in the texas state court action don't fall within the scope and are barred by these contractual provisions that were signed by these clients because if you remember when we originally filed this lawsuit it would just lower hampton it was thirty some odd investors that we filed on behalf and obviously when we got the initial venue ruling we had the option of bringing that appeal to this court by at that time was this argument made to judge y whole the court of ohio court of appeals and that these are different claims and this is not really addressed it in the opinion is it it no it's not addressed in his opinion i agree but we did provide we did make two arguments for why the form selection clause should not apply in the injunction hearing that we had in two thousand and sixteen number one waiver number two judge these are not not just the texas securities that claim this but we feel it was before you it is common law and that is we've what we didn't have before we were before you when you originally in your venue ruling where you were sort of second you know trying to predict what ohio law would be we've now got an ohio law case on point and we cite the bentley case your honor in the what what what is what it would need to go back to judge eichel if you win i think it's simply an order from this court i'm not foreshadowing correct correct understand fake vacating the injunction because it's only the injunction in federal court that is preventing us from going to whistles going for trial before when this issue came up so it is just sitting there waiting for us i guess we would have to go back in and follow requests for a trial date but i think all we need all we're asking from this court is that it vacate judge eckels injunction and your honor the one of the things i wanted to touch upon is sort of why didn't we appeal to that something they raise in their response brief why we didn't appeal this at the initial  call and we certainly don't contest that that initial orders remains valid we agreed actually we agreed except to be bound by as i was saying we represented thirty some odd plaintiffs twenty seven of whom had signed these investment hampton's husband so the suggestion that this is simply a case where we didn't like judge eckels ruling and ran down to the state courthouse to file something i think is is a little bit in the air what actually happened wasn't it and if if anybody is to be blamed blame maybe we got through this and realized laura hampton is in a unique position she she did sign one of these accounts we don't dispute that but she never invested a dollar through any of those accounts we joined her in the state court action we had filed on behalf of the  non account holders and she used the term of judge equal used in his order i think at that point and where we find while waiver we think controls here is there were several options to equity trust to challenge laura hampton filing in state court at that time and they didn't raise any other they identify four things in there at napoli's brief where they say they raised this but the first one is a special exception which was nearly two years after she filed the petition they didn't pursue a hearing on that never set it for hearing the second one is they amended their answer to the court the defense of residue to race due to kata which for reasons we talked about we don't believe is the proper defense and it wasn't until limitations on several merits based defenses and lost on those and it was only then that they came back to argue venue and we believe we can talk policy arguments all day long we believe that bear a smith versus bear pork is controlling because it please the court my name is read a miller and along with judge for merrill we represent the happily equity trust i want to start with the question that judge braised about why his stuffy does not control in this case and we would submit to you that this decided after the supreme court decision in chip manchu then smith came along by the u s supreme court the u s supreme court said that smith was nothing more than a real it a geisha and of what was decided in chick can choose and in fact judge higginbotham in reaching the decision and duffy cites chick can chew and makes a decision that in that case it was a didn't dial up injunction on the re litigation decision was an error and in fact they jagan botham's not the only person to make that ruling in harmony for any dismissal without prejudice for any dismissal in a form selection clause there's a difference between that and without prejudice dismissal yes it was and the judge said in that case without prejudice only means that it's without prejudice to go file in the right forum it's very odd because it's not normally thought of as a final judgment i would agree but one of the things that the the appellate overlooks here is that jayco not only entered an order enforcing the form selection clause in january two thousand and thirteen but less than a month later in order to judge it that turned that into a final appealable judgment and as ruling was those are issues that they all waived if they didn't appeal it in that regard duffy the court also said that the dismissal for improper venue is final and precludes the for race for the related geisha exception now the cases that they want to rely on are for non convenience cases and those are different chick can choose a form nine convenience case and judge him botham recognize the distinction in those two cases  duffy as well as this court recognized invest ques the different in those two cases and they recognize that when you determine a substantive issue like choice of law that then becomes final for purposes of the  injunction on choice of the law in the court the supreme court said the choice of law is a substantive issue and that's final for purposes of reality geisha exception so what the supreme court in chick can choose said was you've got to modify the judgment so are the junctions so it only applies to the substantive law is she choice of law for selection clauses are substantive like choice of law they're not more procedural like the eggs and in fact harvey one of the cases appellant relies on in their in their briefing to a great deal they didn't even get it is a decision which was a transfer in the court says if it's a transfer on then you that's not final so the courts make a distinction between the procedural form one convenience and they make a distinction between a transfer that's not final and say those aren't final judgment but for  in this court also in the hardy case so that's that's something that settled in this case or in this court has been decided can you help me why you don't have a parson's problem problem yes because when it denied summary judgment on race judicata that's an order it's an order but if you were you didn't that an order that even duffy would say would forbid the court because if you read the first part if the first part of judging by his deficient deathy specifically address parson steele parson steele says that i know that it's only when you have a final appeal bill judgment and it's sided inductee the case with a motion to dismiss that was denied and the judge says no that's not that's not a final judgment in the state court such that it precludes you from coming back for the for the religious geisha exception a junction here there is no final judgment by the state court and in fact as we argued to here arguing now why you couldn't wait any longer why didn't you wait too long because the issue the way the appellate wants to phrase it really misses the point appellate frame the issue as did we waive our right to enforce the for selection clause we didn't weigh that right we got an order from judge vehicle in forcing the form selection clause but you didn't rely on it in the state court with any and you didn't go back to the for regular waiver well let me let me address a couple of things because the real issue is did the federal court still have jurisdiction now i'm not suggesting that ultimately the court couldn't make a final judgment on waiver and then we would have had the parson still problem but we didn't get there because in e tried to get there dispositive rulings from the state court i mean let me and that's why isn't that why shouldn't you be held why isn't regular waiver in let me address that you're on just applicable there's two points there was it was abundantly clear that the order was in forcible initially and they followed it she went to ohio and it was only later that by simply changing the name in the heading and slipping in that she was individually as well clause on the for selection clause they made the argument there that it was very narrow and only have a contract and the judge said no the form collection clause is a broad form selection that covers all tort claims so the judge had already ruled jayco had already ruled that this form selection clause was brought in covered their tour claims if they didn't like that they should have appealed it at the time and they didn't appeal it at the time so they've waived that argument what happened is there were two cases in state court one was going on this was largely dormant the they knew scheduled order was entered in january two thousand and fifteen we noticed and it's in the record we noticed laura hampton as hampton trust who we believe was plaintiff in the case for deposition and when we took her deposition in march of two thousand and fifteen it became clear that she was trying to raise the same claims in texas that she was still raising in ohio in violation of judge eckels order within a month we filed special exceptions raising that issue had a hearing try to get the issue resolved they are mended made for the first time in may of two thousand and fifteen specific allegations as to laura hampton individually been raised affirmative defenses of race to caught a collateral scuffle the form selection clause and continued to raise those now it's important to remember she wasn't the only plaintiff in the texas action there were eight plaintiffs in texas besides her and there were scheduling order deadlines that dealt with everybody and so we had to file motions for summary judgment with respect to the plaintiffs or lose that right in state court we filed a motion on race  state court raising both judge a close order and the foreign selection clause and the decision in ohio that was denied ultimately without any kind of a ruling it was just first it was stayed and then it was stay was lifted and it was denied with anything kind of opinion or anything that regard once it became clear in march of two thousand and fifteen that laura hampton was attempting to violate judge eckels order we repeatedly raise the issue become why wasn't it clear from the beginning i know you said this well we thought she was only on not in her individual capacity but then once a special exceptions were filed that was april of two thousand and fifteen right right why didn't you go there before you filed summary judgment in august and in july and august we filed the special exceptions in april two thousand and fifteen they amended in may of two thousand and fifteen to finally alleged specific allegations regarding her individually and then we timely raise the affirmative defenses in our discovery responses in our pleadings and then we moved for summary judgment in july of that year because you but you get affirmative litigation this whole time you sought discovery you did and then instead of instead of going straight to judge a call you filed a summary judgment with all with not just this point but with lots of other points too and i have two responses to that your one hundred  first is remember she wasn't the only plaintiff in this case there were eight other plaintiffs including her in her representative capacity and all of those summary judgment we referenced our motion for summ judgment with respect to her on race judicata and the judge ruling so each of those were filed subject to that but we had deadlines with respect to all of the plaintiffs not just laura hampton that if we didn't meet those deadlines we were going to lose them now you also ask why did we go immediately to judge a culture i still do not see why you didn't go to yankel jackal which are much earlier because the concept of under the dual court  both the courts have the right to determine the issue in the real litigation exception is considered and kind of a last resort so we tried first to get the state court judge to recognize his order and only when the wouldn't acknowledge his order then we felt we had no choice but to go back to judge you also tried to win the case outright in the state court because we had eight of the us with instead of going to judge the whole you tried to win on the merits in texas de coeur new would have been perfectly happy winning on the merits in texas state court but now you're stuck with the trial setting and so then you go well winning on the merits would have meant we won on race  including hamp one but that's irrelevant to her it seems like this is like a mirage situation which is also a form selection case where we held that too much litigation affirmative litigation took place and that there was waiver and outs of the go ahead well i want to talk about the waiver on any of the waiver standards there's two prongs one was are either too much litigation or was there an affirmative it was different from a to litigation on your client behalf it was defensive litigation defending claims by someone just gathering against her and then seeking summary judgment against her those are those are not just defensive moves there they were moves that we made to defend the claims of her but there are times they're using the texas prop you're happy to be in texas when texas might be going your way but well actually we were because the minute we found out that she was trying to be in texas we started raising the issue and we couldn't get the judges to follow it we pled the special exceptions we didn't get any relief there then the next thing was to move for summary judgment we didn't get any relief there and so we ended up going back to the court there's an issue and waiver you only have you have to show prejudice to the plaintiffs or to the other party and there is no prejudice to her she is the person who followed judge legals order that was very clear went to ohio and then while she still a plaintiff in ohio in pursuing her claims in ohio she comes back to texas in violation of his order there is no prejudice to somebody who is form shopping in that regard why isn't there prejudice and having to answer your summary judgment motions and answer your discovery in texas state court because the same counsel was going to answer that discovery on behalf of everybody and i'll be happy in a representative capacity you know you can't create the situation and then claim prejudice in that regard you know she was fully able to litigate her claims in ohio state court and didn't have was not precluded at all from pulling it out of that now it's not a part of the record but it's my understanding that she has voluntarily dismissed those claims without prejudice with the right to refile them by february of two thousand and eighteen but that anybody raising  limitations or any other bars to go to the to those  i want to mention because council started with smith the supreme court decision smith smith is a very different case than this case in smith it was the supreme court the decision that the facts in front of it were that it was they had denied classification in the state or in federal court and then it went to what they filed a new case with the new plaintiffs in west virginia state court asserting classification under the west  statute and what the court said was one that you didn't have the same party because the party in the second case was an unnamed plaintiff in the federal class action and two that because west virginia had specifically disavow the federal law in the area of class actions that they did not it wasn't the same issue or fact what they're trying to argue in here is somehow that once you have an order that you can not that you can waive that order simply by the actions they've taken all of their cases deal with form selection clauses none of their cases deal with orders granting dismissals on form selection clauses and that's why i bring you back to duffy because in that case the argument was that the state court judgements denying for close of effect to the federal form flexion clause order were for closely and prevented them from coming back to federal court and the court said no as long as there is not a final judgment on the merits then you have the right to come back the federal judge retains jurisdiction to enforce his order so i would suggest to you that this court's decision in duffy supports us both on the non waiver the court still had jurisdiction to enforce his his injunction and also that that he found that a valid form solution clause order met the standard for the exception do you believe that digital implicitly analyzed these other state law claims yes i mean i think the actual there in his order is they raised that issue they judgment with the injunction in the injunction he says and makes a specific finding that ma i first order was that these were broad form selection clauses and that therefore they covered all their their common law claims in addition to the contract claims he made that finding in his first order any refund the finding when he granted the injunction so it wasn't implicit it was specifically in the order some of these were not should have been peeled then they should now be able to collaterally attack that order at this point because that order was long ago just as the order you heard counsel say we didn't quite understand that it applied to her that's an order the evidence was in front of them and that's an order that should have appealed back then and fail to and that's why judge eckels said if there is a waiver they waived it by not appealing his original order ls counts they will support as any further questions they would simply ask that you reaffirm let me start with that last point our position is judge i could only decide what was in front of him in two thousand and thirteen the only claim in front of him was the texas securities that claim that was the only claim we alleged in the original complaint that was filed in two thousand thirteen when he when he ruled he necessarily only ruled that the venue selection in the form selection calls covered the texas securities act but setting aside even if we grant that he had the authority to rule on that claim and any other potential po claim that laura hampton may ever have against equity trusts including in not going to a car wreck case if you ran into a delivery guy from a can you trust that still doesn't take the waiver issue off the table and i think that's where this case is the cleanest in the clearest basis because that takes it out because duffy did not involve any anything close to waiting two plus years in texas state court to fit to employ a heads i win tails you lose position of if i'm winning all the merits then great i don't ever have to worry about more hamptons case i do want also address the ohio litigation the court asked that question there was a settlement a global settlement of the all the plaintiffs that went to ohio with the exception of laura hampton who did without prejudice the subject of the terms and conditions that have been stated obviously because the ohio court was aware of this proceeding and number two ironically what we've heard in ohio is a she can't recover any money up here she never invest the money through her accounts so we're sort of in a catch twenty two position which is why we would like to proceed as we originally intended proceed with her claims part of the texas state court provision state court proceeding i think all of this comes back to what judge all right brought up and that was we take issue with the fact that this is not this was not a dormant case by any means answered it and at no time during two thousand and thirteen or fourteen or fifteen did we hear anything about wait a minute judge eckels order says you can't proceed in state court there were there were mechanisms available under state law that they could have f challenge the venue right away there's an in a locker torrie appeal process if the state court judge made that made the ruling they didn't like and so for all those reasons and the policy reasons we think this all comes back to the waiver issue and i think the prejudice issue is  is evident in the fact that laura hampton had won her right in texas state court to proceed to a jury trial she'd already gone through the discovery process you've already been deposed in that proceeding and so for all those reasons we think this case even if it is a close call i think that's where parsons does come in because parsons not only addresses the issues that were discussed before but it makes clear that principles of federalism require caution in this area and smith versus buyer bear court also concluded by saying if there are be close cases deference is given to the state court and the state court proceeding is allowed to go forward i would submit this is a clear cut case of waiver but to the extent it is a close case i think parsons and smith balance the