all please mute your cell phones or any other devices that might interrupt us there in this presentation and nd you're not allowed to video or record this  session any more than you would be if we were in new orleans or if it's being audio recorded immediately and finally because of the inherent communication uncertainties regarding this kind of oral argument we will give each of you five minutes uninterrupted in your presentation and so with that we will begin with time this morning i'd like to address two points the st is a point noted by another panel of this court and that has to do with jurisdiction or a gateway issue and we will explain that mr durso may appeal this  judgment notwithstanding the fact that he did not apply for discretionary relief under rule sixty b in challenging a default judgment and nd on the merits the sole claim asserted against mr d intentional infliction of emotional distress does not lie based on the facts even assuming that to be true and so i'll begin with the jurisdictional issue and i think an appropriate place to start is the united states code itself and twenty eight dollars u s c section twelve dollars money want those that are all final decisions or appealable to the federal courts of appeal such as this court while there is no doubt that rule sixteen b is an avenue of relief nothing about rule sixteen big contends that it is a mandatory or a box checking avenue on the way to an appellate court this court has noted in the su a insurance case that d judgments like other judgments are immediately appealable be it that was a non presidential opinion the court has addressed the issue in the circumspect manner in some other cases and i think they they should some light on under rule sixty b the panel of that court considered the merits of the challenge found to be valid and vacated the default judgment against suggesting that there is an opportunity for a direct appeal the case some forty years later actually cites mission matsu and again while there was a rule sixty b challenge in the womb case the panel of this court treated the direct appeal and the sixty b appeal as distinct avenues in its analysis other circuits are mixed we've noted our brief the nd circuit and just last year the th circuit ever held that there is no precondition to challenging default judgment by way of rule sixty big in fact in the six circuit case the court noted that it did not see anything in the federal rules that requires a party always to file a rule sixty of the motion in order to appeal the default judgment now some other courts agree in a particular of the th and the th circuit and i think there's a practical reason for that disagreement because in certain cases the only way for a defendant to present evidence to make his challenge depending on his argument is by way of a sixty in motion really to make a record but when we have a case like mission matsu where it's essentially a rule eight based challenge the question is except in all of these facts is true not injecting any affirmative defenses is there a claim here well in that case there is no need for rule sixty b now to be sure a defendant cast by way of default who does not see that discretionary relief gives up a lot giving up a major opportunity for some discretion to present evidence again but it's not the only avenue again as this court has shown in the law are deemed inappropriate for the rule and so in that case if the defendant does wish to present an error of law his or her only path would be by way of a direct appeal so we would submit in closing on this issue unless there's any questions and i do welcome your questions on this that d neither title twenty eight nor will sixty be requires that box checking so to speak in order to present a direct appeal to this court  are no questions on that i'll move on then to the merits of the of a case and no judge change if you are asking a question you're muted you have to be hey she gave us five minutes well now the five minutes are almost gave him five minutes i wanted to ask a question but didn't want to interfere with the five minutes ok so the question is did mr kelly at any point contradict this point about rules sixty has has stelly taken the position in this case at any point as i haven't found it aware of any response to that by mr elie so if in fact it were made a tory it's still not jurisdictional and so it would have been waived by the failure to raise that right so even if we were to conclude that it's mandatory but not jurisdictional it would be waived or forbit it by the failure to raise it right you're exactly right and in fact that was the reasoning of the th circuit in the prime rate case they said without deciding the question if anything if this is sort of a claim processing rule it would be non jurisdictional and thus subject to waiver and it's very clear right that it is not jurisdictional because it is the supreme court has been very clear so there clearly is jurisdiction in this case if i can my question is you said i didn't have to raise this below i mean you made the point that you can't raise something new if you didn't not under rule sixty b which i think is clearly true the cleaning they said there isn't another cause of action besides the size and so can you now show up for the st time on appeal and say the id is not a proper cause of action here i believe we can judge and i think that gets down to the fundamental distinction between an allegation of fact and a question of law the availability of another remedy is a question of law and as i'll address there clearly was there is the back to whether you could have been sued for sexual harassment there's the value of whether that takes care of everything there's the fact of what you claim are other causes of action that fit better with the so while i understand the concept that the law is gives tells us whether there's a concert back to whether there's a cause of action rests on the backs and you can't raise any of back right i can't but i think that based on the fact that are alleged and the law that gives us enough and and bring back the mission marks a case where there was an allegation in that case based on a letter of credit that a particular individual who signed the letter of credit was liable and  standing that the contract that was attached and the panel said what we can consider the contract it's attached it shows on its face that this signatory signed as a disclosed agent in a texas law like a lot of other states disclosed agents are not personally liable so notwithstanding the allegation of fact that there was liability the legal principles control that i think in this case when we consider among other things and let's put aside  policy in favor of judgments on the merits and against a foe judgments this is sort of a tort of last resort in texas it's a gap filler and the courts have told us that when there is any other remedy it's not available as a matter of is sexual harassment well there is a remedy and there's a texas commission on human rights there is title seven and i would submit it for a couple of reasons the complaint alone tells us that the gist of this case was for sexual harassment and the complaint is set out as many complaints are in various counts and i would refer the court to count three which is the i e d count recites the various elements traditionally to id it says this the sexual harassment and a hostile work environment against plaintiff were extreme and outrageous going beyond all possible bounds of decency and utterly intolerable and a civilized community so what was intolerable what was outrageous to quote the complaint was the sexual harassment and hostile work environment and i think if the plaintiff would suggest that no this is entirely separate my claim  claims against mr durst so arise out of the same transaction are the same case or controversy i should say as there are many claims if in fact she would now like to say that it is completely separate and it's independent well i think that she doesn't have a basis for subject matter jurisdiction and really on that did you we did not argue that because our attitude is well let's ignore that for the time being what occurred to me and i'm not quite sure how it cuts is that there is no state cause of backchannel or free standing sexual harassment in other words being the only way in which sexual harris mint  is actionable is under employment law but of the state or the federal government and therefore it's actionable only against the employer so there is no such thing as an independent free standing claim for sexual harassment so the only issue it seems to me is whether somehow we're going to allow the invention of an i e d claim in these circumstances and and you didn't cite the credit watch opinion of the state supreme court mr flanagan are you familiar with that one i am your honor and i'm very young regretful that i didn't cite it because in that case the texas supreme court vacated i e declaims against both a company and its c e o that were premised on sexual harassment again finding that if there was a claim to be had against both it would be under statutory law and now i have knowledge the case did not discuss why the principle would be the same against the c e o as the corporation but its holding was to dismiss that i e d claim against both and i would submit that the question becomes is there a gap in the law merely because the remedy fashioned by the legislature where the congress or the texas legislature does not have personal liability against a supervisor melanie has this though because there was this discussion of whether you can make a claim for sexual harassment outside of employment if somebody let's say  well she would have an assault claim and a battery claim to be sure i think it would also be fair to say that in that instance judge is a serious question about whether the gist of that cause of action would be sexual harassment in contrast to this case the complaint makes clear on pages seven and eight in fact the allegations of i d d are repetitions of the gender discrimination retaliation is and sexual harassment claims against the employer so i see my time is winding down i'll reserve the balance of my time unless there's any further questions you would you measured off and up that's obviously an employer case right that is why do i understand correctly that  are we cited some cases from the northern district of texas i think there's also a lot of cases cited in credit watch which joe johns mentioned including cases involving fraudulent joint durations and whether the suit against the in state supervisor would be sufficient to destroy diversity i wanted to mention one recent case decided just weeks before we found our brief called roan versus dean the texas court of appeals at austin and on published case does a good job of assembling the cases that address part of watch you would say i would southern district in extending often exactly we would in and or you are simply say that credit watch versus jackson decides the question in the case that if are going to be a reasonable rootie for the cause of action because of the extent of behavior that that there is no other cause of action that would supplant the e p so in this particular case i think it was the extreme and outrageous conduct one of the problem was that we've had in the case indicate is that thought of that was necessary is sexual harassment and he certainly did that an issue a later he got suspended if he also realizes he was going to be successful with the sexual harrisons and our main point and we've indicated that so she was simply terrified about go in down there because even if he was suspended he continued to go down and he was not doing sexual harassment at that point but he was doing a very outrageous conduct in terms of trying to keep her from getting a job you know he tried that over and over and he was successful sometimes so what on indicating is that his conduct changed you have to know the beginning conduct to understand the case but that's what happened  are questionable yes sir i do i think i do understand the sequence of events here and your pleadings indicate that she was scared to go down to the hiring hall during the month of july in august i believe yes you are now then in october i believe he was permanently suspended so you are not already made a complaint against him the union and a suspended him but he went in to stay cool he went into state court then he went into federal court and eventually he was permanently suspended but as i understand another part of mr flanagan sarge meant that when you got to proving damage i think the jury in the trial that you had better end up judgement is for six thousand four hundred dollars in lost wages and i inferred that that was for those two months is that language and all of those that needs i know that you went to trial on the allegations of his misconduct at local twenty one dollars for the month of october is that not correct because the judge granted and over as regards any allegations against the other local thirteen whatever put this is a seventy five thousand dollars default judgment and you put on evidence before a judge we're a line of mental anguish and lost wages so you are talking about a time that has nothing to do with the sexual harassment time period there may be a lack of subject matter jurisdiction can you respond to that what they claim to suspend him but it but they didn't keep him away from the hiring hall and there are indications that the local president supported him i think and you know there are those allegations are not divorced from each often judge haynes's track and this is a friendly question as i understood the trial it didn't which i only know about from your braves the union was they were parts of the union were either protecting him or they were not preventing him from bullying her and bullying the foreman who was still at the hiring hall and so right that is correct ok that's all i wanted out so ask about the rule sixty b which i do not think is a jurisdictional question have you ever claimed in this case that the failure of mr de reso to bring a rule sixty b or fifty five motion in the district court means that he cannot appeal we've never claimed that you know ok so would you agree with me that even if we were to conclude that that is a mandatory provision that you all would have waived your forfeited that by not raising it would agree  default judgment proceeding didn't didn't your client say i'm not talking about sex harassment now i'm talking about when mr doris flow was stalking me around hanging around my house taking photographs i think it is showing some kind of threat it is that don't believe she said anything about coming to her house but she did mention the other things and he was doing that in including the months of july and  august and leading up to that and that that's why she was free to go down there what is your best case for the argument that the id claim is appropriate here in a case where she has been successful on a sexual harassment claim against the employer believe it is the fact that there's no cause of action that allows  thank you ron i'll begin with judge hose last question which is the status of the pleadings relative to lost wages the complaint broke out of damages according to claim and in connection with the i e e e declaim in particular there was a request for an award for loss of earning capacity not lost wages there was a claim for lost wages against the unions and would acknowledge that it may be a technical distinction but when we're dealing with the full judgments we sometimes get technical rule fifty four c tells us unlike other judgments that a default judgment cannot very unkind from what was demanded in the pleadings so we do have an issue there and we may better argument in our brief ultimately the question if we look at hoffman and then of course credit watch comes down what where what are the remedy on that just to spend it back and have a new calculation of the no that you thought of judgment against you but you would have a chance to talk vacated in that case because there was no gap and the question really becomes if the legislature determines in a particular claim an employment climb we don't need personal liability to accomplish our objectives we can make plaintiffs whole by having companies liable that's where the deep pocket is anyway i don't know that it would be appropriate for a cordon especially a federal court to say that there was a gap in other words some imperfection same thing what if there is a cap on damages i don't would say well there's a gap to the extent the plaintiffs damages exceed the cap or punitive damages we wouldn't say there's a gap because punitive are not allowed and you know the texas supreme court has been almost reading i think if we look at the complaint here alone it tells us we're not dealing with unrelated allegations judge jones asked questions about what were the months in question when the plaintiffs didn't go to the hole and the months were july and august the very same once identified in i e they claim there's discussion about after the the sexual propositions that were alleged ceased what additional conduct was there well that's the retaliation claim against the unions under title seven this alleged in paragraph twenty seven dollars that the defendant prevented the gang foremen from selecting the plaintiffs for jobs offered that keep her award against periods the judge cited that evidence in denying the post from motions as to local twenty one dollars so again we have overlapping evidence we don't have a gap we also don't have unrelated facts that again if the facts are unrelated to sexual harassment there may be a claim for i e d if the conduct is bordering on criminal the texas supreme court has told us but again back to judge  if in fact we're dealing with conduct unrelated to the employment setting we're then we have a subject manager stiction question if in fact it is all part of the same case or controversy as has been alleged then there is no gap because the had a remedy and a taint a remedy from local twenty one and so unless there are any further questions i think the court for its time ok mr flanagan your court appointed in this instance and you have certainly done a marvelous job for your client and we appreciate that said it very interesting case which we will take under advisement thank you bo