summary judgment was error and should be reversed my client's two african american gentleman section one thousand nine hundred one claims against the cornish companies who developed the power and light entertainment district here in downtown kansas city entertainment concept my clients alleged and the evidence viewed in a light most favorably to them showed that in three incidents one in twenty ten and the other two in the summer of two thousand and eleven they were victims of a pervasive segregationist scheme to prevent african american men defendants the district court however granted all the defendants summary judgment holding first that mr combs was judicially was stopped from bringing his claims due to his failure to list them as assets in a prior chapter seven bankruptcy and second that manner in which this court has ever applied judicial stoppel especially in the bankruptcy context first the law both in this circuit and in the tenth circuit and i think that's kind of crucial where mr combs is chapter seven bankruptcy was is that his claims against the defendants which arose post petition the two twenty eleven incidents were post petition were were not assets as a matter of law that he had to list in that bankruptcy as a result and as this co amend the that's an excellent question your honor the the answer to that is twofold statutorily he had no such duty to eleven u s c section five forty one eighty one says that all he the duty to list is what he had as of the commencement of the case that's the phrase the statute uses second in the v the bickle market research case which is the tenth circuit in twenty fourteen they held expressly that when you have an asset that can switch valuations or something like that that there is no duty to embed i mean the way i read the statute in the way i think the tenth circuit read the statute in the vehicle market research case is let's say after finding it you would you wouldn't find the several rises but let's say you that after filing your chapter seven bankruptcy you win the lottery you wouldn't really have a duty to amend because that's not something you held as of the commencement of the case now of course in a normal circumstance somebody wins the lottery would dismiss your bankruptcy but what how do we compare that with chapter fourteen that's in the chapter about what's in chapter seven of of the bankruptcy code the cases we rely on are principly not chapter thirteen cases the cases the other side relies on and in our reply brief we go through every  case in this court in two thousand and six that's also a chapter seven case the difference of course between chapter seven and chapter thirteen is chapter seven is a liquidation chapter thirteen is a reorganization while the plan period is still ongoing i agree with the defendants that if there were a chapter thirteen bankruptcy as in the jones case that this court decided just this year if this were a chapter thirteen yes there would be a duty to admit but there isn't in the chapter seven because even if it's not connected in complaint were as to all the incidents together with both with both plaintiffs i agree we agree with the defendants as we also agreed about first response not being liable for that claim either that mr combs has no claim as to the b b c so that he was not thrown out of the district he was not thrown out of the establishment that's only as to mr williams so what we're really dealing with are these two claims the tango incident and the mosaic incident which occurred post petition now one of the defendants first response tries to suggest viewing the evidence in the light most favorable to them that those claims also occurred pre partition mr combs testified very clearly that this occurred in the summer of two thousand and eleven he filed his bankruptcy petition in august in april of omission of them was not intentional knowing where in bad fake as this court paraphrased in the total of the total petroleum case nine eighty seven that it wasn't tantamount to rot he didn't know that he really had these claims against the defendants in the summer  and eleven he obviously he had suffered discrimination he testified in his deposition that he had talked to some friends who were lawyers and he really didn't think this was worth it but at the time until glenn cusumano had blown the whistle on what the the very very least jurors there would be a genuine dispute of material fact as to this question it's a question of intent to me that's that's that's the paramount sort of factual question that exists in our in our legal system which would preclude summary judgment any now the other side argues cornish specifically argues that because this was the district court had discretion to determine whether my client should be judicially stopped he let it be the summary that there was this claim but he didn't bring it but mr combs says very specifically that you know i had no idea this was something that i would have to look at this was an incident discrimination that i as an african american had suffered and i you know i had no idea that i had a duty to list this and of course the bankruptcy court in allowing him to reopen and i meant is claims agreed with that so clearly this is some sort of genuine dispute material fact you can't have summary judgment on finally regardless of any of this and as i just mentioned as  failed there's the recall of course that the mcdonnell douglas rubric is that my clients can prove a crime if they should case if they can show either direct evidence of discrimination in these incidents or an ongoing cattle racially discriminatory headedness directly for the district from karen williams one of the longest longtime guards in the district christina martinez one of the managers of an establishment in the district what they and others what they showed is that the courts defendants in first response intentionally purposefully engaged in a pervasive years long racist segregationist scheme the likes of which we haven't seen in this court in fifty years to prevent african americans from patronizing the lie block using exactly the tactics that were used to exclude the the three incidents here this under began a douglas under this court's decision in the came case in ninety seven and in the white case in one thousand nine hundred eight this is and must be to wreck evidence of discrimination and at the very least an ongoing pattern where they were go somebody pumped into a lockdown so for one thing that i think is interesting is in holding that the district court cites no authority in fact the only authority is in the bar restaurant entertainment context which unfortunately this court has never got to apply nine hundred eighty one in that context but i would ask the court to seriously examine the generally case in the fifth circuit which was a very similar thing where what here your owners have to remember that the lie inside the life block so my clients claim isn't just that he was excluded from tango said cantina but that he was excluded from the live like and in total but i don't think the fact that he hadn't yet made up his his mind about well it wasn't that he had made up his mind  all testify to about the pattern and practice that a court issue and its subsidiaries had engaged in using these rats that is someone comes up to my client knocks his cell phone and out of his head and when my client objects suddenly first response speculation plain as claim that my clients are racially biased by point to things they say my clients did to other people but the plaintiffs cannot get to a jury regarding their own nine hundred eighty one claims without evidence that defendants did something to them pattern practice is a method of proving bias usually in employment cases it doesn't allow a plaintiff to skip the stop of proving that the perpetrator is actually the defendant who's in court in an employment case that's not usually an issue but it's clearly an issue here where there are hundreds if not thousands of people walking around the pound like just plaintiffs lack of evidence is easiest to see in the maker's mark incident plaintiffs alleged in an unknown man who started an alter  agent a rabbit hired to pick a fight with them because of their race but plenty of speculation it was debunked when the man was identified and the facts he provided contradicted plaintiff's theory of the case hendrie testified he was no one secret agent he was just another customer who acted in a bar for his own reasons that night there is no evidence that mr hendrie is lying and as judge riley and judge kelly recently confirmed hegan miller case a plaintiff cannot get summary judgment on the hope that the jury might simply disbelieve the others in the cell phone incident the man who knocked into plaintiff combs was never identified but there is no evidence that he was any more of a secret agent than cal hendry was the district court did not weigh credibility or evidence there's no evidence to weigh no matter how evil plan of combs might think the defendants are they cannot be held liable for that and he cannot get to a jury based only on speculation that they might have been involved in summary judgment is all the more appropriate here because the facts the point of combs described are not even fit the rabbit scheme as his star witness going to some i know described it as he seems to be describing it testify or speak for what plaintiffs think the scheme is i don't think there's any scheme whatsoever what with the what how would you describe the evidence that was present there is no evidence against my clients as to these points that's my position in this case and stoppel but short of that i don't see that there's any evidence of any scheme against particularly against these plaintiffs are on the spite the fact that they have a disgruntled in with just former employee when  is evidence about this rabbit scheme years later actually points away from the cell phone incident as being point part of any such scheme and the words the judge fahnestock used when he does describe cusumano dismissed cusumano as own race discrimination case applies equally to plaintiff combs lack of evidence here testify as to general discriminatory tactics used by defendants but proffered no evidence of race discrimination directed toward him personally furthermore there your honor we have not appealed the district court's finding that casey lounge specifically was not entitled to summary judgment but as to the other defendants we agree with the district court that there's simply no evidence tying all of them to what one doorman at a restaurant did the district court repeatedly warned the plaintiffs that they needed to correct to connect the dots among all of these different defendants and entities and the plaintiff repeatedly failed to do so and did not do so in their summary judgment it exposes the fact that all of this speculation about what my clients may or may not have done to lots of other people in other circumstances doesn't have anything to do with these plaintiffs and these plaintiffs are not entitled to a section one thousand nine hundred one remedy unless there's some evidence that my clients are responsible for what happened to them they cannot say there is a pattern of discrimination maybe they could of what they are if if all they had to do was prove bias but they have a more fundamental obligation to prove that my clients actually did something to them hendry shows that not everything in unfortunate that happens to an african american visitor is the result of some scheme and that's what the district court found as well in the cell phone incident point tire i'm happy to address that that wasn't the argument on summary judgment i've been happy to address in any way because a circuit laws clear that walking into a business even a specific business is not enough to create a tangible intent to contract and engage in section hundred one protected activity and if walking into a specific business is not protected activity then surely standing thirty feet from the done front door just thinking you might walk into one if your friends are there is not protected because he admitted facts supporting the district court's finding that under a circuit law his failure to disclose was not in it for moreover plaintiffs combs repeated shifting and inconsistent explanations in court makes  to disclose that to post petition incidents the most obvious problem with the argument is the plan to fail to make it that summary judgment plaintiff says it's a new argument and that it's a pure issue of law and therefore this court can review it anyway but that's wrong for four reasons first as this court stated recently and in a genetically modified rice litigation this pure error of law argument boils down to plain error review the plain air doesn't work here because plants didn't only forfeit the issue which is the term used when an issue was raised for the first time on appeal the new hampshire first new hampshire factor and plaintiff disclosure obligations were raised in the district court plaintiff however waived the issue by abandoning it twice and because he abandoned the issue heirs not avail he had it he abandoned it initially by failing to address defendant's summary judgment argument that the first new hampshire with a factor was satisfied because he had a disclosure obligation and conceded the issue again when instead of disputing the obligation he chose the tactic of telling the district court exactly the opposite that his failure to disclose the three incidents had been a mistake let's with but that issue  question in the tenth circuit as to whether or not there was any obligation to him and i believe that there was here because the plane of cited the rule about there being sufficiently rooted in the preposition asset plaintiff wants to pretend there was no pre partition asset but intertwined with it he pleaded them together he pleaded that they were over all these people that they together comprise part of this overall scheme he pleaded them in one count he claimed damages for the maker's mark incident and said that they were increased each time by the subsequent incidents and his disclosure of damages didn't differentiate among the incidents now plain air also doesn't work because plaintiffs they are extends beyond the district court this specific legal argument that he didn't need to disclose because of this difference between chapter seven in chapter thirteen wasn't raised until his reply brief on appeal argument is not made and developed in the opening brief or wait there is no clear air as i said because the even the bankruptcy judge says it's an open question so there's no clear error of law and for it's not a pure issue of law anyway because we have a sufficiently rooted issue which has to factual determination that need to be made whether it's sufficiently rooted in a preposition asset and whether or not it will untangle the debtor's ability to make a fresh start those are both factual determinations and so it's not a pure air filing of the chapter seven he himself is the one who has intertwined them all together and cited this proposition of a law that says if the later assets are are sufficiently rooted in the preposition asset and they all need to be disclosed a case that says well the evolving value of an asset doesn't need to be disclosed but that's only if the preposition asset itself was disclosed here it wasn't it's particularly i think galling to make an argument about well we don't have to since close because of this distinction between preposition assets and post petition assets when he didn't disclose the preposition asset either the bankruptcy court made a good point didn't in the sense that the pre partition asset is a single incident and for a lay person to believe that one incident like that would be a  claim i actually don't think that the bankruptcy court made a good point and i'll tell you why first of all the pictures the court was has a different standard the bankruptcy court says that they reopen bankruptcy as a matter of course unless there's a demonstration of bad  but the bankruptcy court also amazingly concluded that plane of content no idea couldn't possibly have had any idea he had a claim that's exactly the opposite of what he told the district court he said i knew i had a claim i just decided after consulting with attorneys it would be too hard to pursue it cornish was a difficult defendant that's not not having an idea of having a claim that's that's deciding i don't want to bring it and then changing his mind years later that's textbook judicial stock i also just want to briefly if i may about address the la factors plaintiff's entire argument in the last two new hampshire factors has to do with those being obviated by the reopening of the bankruptcy but that's directly the opposite of a circuit they circuits clearly says that going back and trying to fix it after  schorr good morning may please the court i represent first response as separate defendant in this action first response as a security contractor the provided security argument i want to point out a few misstatements in the reply brief on page twenty three there is a statement to the effect that first response was knowingly consume licit in the scheme to exclude african americans from the district there is simply no evidence that first response was knowingly complicit in any scheme let alone whether there was a scheme in twenty four similarly there's there's a statement to the effect that there's testimony that first response excluded blacks with knowledge of racist intent again there simply is no evidence of any racist intent on the on the part of first response as to the mosaic incident i think it's really important it's a threshold question it in any case that you identify the proper defendant plaintiffs combs testified to clear as day in his deposition after very confusing testimony about when this incident occurred at the very end of the deposition after it was back and forth and all over the place there was a question asked the best you can tell me as far as when this incident occurred outside of mosaic either in line or outside of what the line would have been in two thousand and ten or two thousand and eleven is that correct answer correct and so to say that he testified that it was in two thousand and eleven contrary to his later testimony in that no i really don't know when this occurred because he can't tell when this occurred he doesn't know he can't identify first person ponts very briefly i want to just say about the the rabbit scheme i don't think there's competent evidence that he did that  even existed but if it did exist the only evidence is that this was a scheme that was designed to trick first response and to reject in an innocent african american it doesn't take a grand scheme like this to just have first response object african americans it takes a grand scheme like this to concoct a fight or in an incident a brawl and then have first response object both the the instigator and then the innocent african american and by that by that fact that there's just no way that  what's really going on here with these contract lines and the difficulties the plaintiffs are having they're trying to place a square peg in a round hole the claims here could have been easily brought as a title to action under the civil rights to identify the subject of contract that they actually wanted to to engage in mirrors or to just presence at a commercial establishment in a restaurant or bars and sufficient under one thousand nine hundred one this is not a public accommodations mr sternberger you know you have some time if you want me to give you three minutes that would be very kind thank you your honor a couple of things to address here what your honour's just heard when it comes to the facts when it comes to the merits of this case utterly completely fails to view the evidence in the light most favorable to my clients one of your honor's asked the other side about this scheme and mr shane bird responded that he doesn't know that there is no evidence of any such scheme and he starts talking about something a judge found a stock decided found a stock yards are from out of town is a local jackson county circuit judge in another case involving the cornish defendants that's not in the record here it has nothing to do with this case the evidence here from mr cusumano who i remind you runners was the former head of managers most certain paul tango yes and christina martinez who was the manager of maker's mark also testified the same thing but mr cruz amount to really specifically said that he was ordered by by quarter his own executives to tell blacks that they can't enter a club because they were in violation of the dress code when they were not just like in the mosaic incident with mr combs questioning blacks in a way whites would not be in when blacks objected a first response and absolutely did tell to fight that first response was complicit in this s about what first response had done first response its own executive lisa o'brien who testified finally at the end of her deposition that she had burned the logs of what they had done of who they had objected specifically because if people had seen the number of african americans that they injected it wouldn't look good i call that spoliation of evidence as to the tango incident which a judge rightly you said you had some issue with and i don't blame you the evidence viewed in the light most favorable to my clients isn't that he hadn't made up his mind where to go mr combs absolutely had he had a prior appointment with his friend ical that also testified her deposition is on the record cited in our briefs to go to tango he simply stops to center a text message to make sure that's where she still was under the dunaway casement fifth circuit which was about people standing in line to go somewhere waiting to go somewhere to to a club and also were pretextual excluded from that again this circuit has never addressed exactly this this is sufficient evidence this means mcdonnell douglas my clients at least should prevail on the merits for summary judgment a jury should be allowed to hear this we've asked the court to reverse it thank you very much thank your honour's thank you all