honor good morning my name is tim ryan and i represent the appellant's in this appeal morgantown machine and hydraulics and swanson industries appeal is the improper expansion of an ohio district court venue related findings which findings were expressively limited by the court to a motion to transfer venue but then were unfortunately adopted by judge hamilton below and applied to the merits of morgantown disclaims in the context of the defendants rule twelve b six motion after the filing of the morgent machines complaint the defendant american piping move the ohio court to transfer venue under fourteen zero four or twelve b three the defendants were a little bit unclear on exactly the the basis upon which they were moving  i don't think it matters terribly while simultaneously moving to dismiss the case the ohio court excepted and i guess this is the key part of this are that the ohio court accepted an considered outside materials including competing declarations emitted by the parties while again really expressed the recognizing that could only do so for the limited purpose of the judy keeping the venue motion a motion to transfer and the ohio court at this time a motion to dismiss under twelve b six for failures to claim contending that the ohio court had already adjudicated the matter unfortunately judge hamilton below adopted in a wholesale fashion the venue related findings of the ohio court which were based on facts outside the pleadings and then improperly applied those findings to the merits of this case without ever affording morgantown machine and swanson any discovery on key factual issues there's a number of those factual issues which we would like to take up this morning but what is particularly problematic in these rulings is judge hamilton's acceptance of the ohio court's venue related findings in the adoption of the conclusion that american pipings august the eleventh twenty eleven price quote constituted an offer which was then accepted by morgantown machine and a lot of the problem that flow in this case flowed from that improper adoption by judge him so with the court's permission i would like to briefly address the jurisdictional issue raised by american piping morgenthau machine for here appealing the lower court's merits determination limited to the venue issue didn't it also though in holding have to conclude that the entire terms and conditions were part were collectively part of the world for  limited purpose of making a venue determination the court did the ohio court concluded based on that extraneous other ones those that evidence outside the pleadings that those terms and conditions applied but again it was for that limited purpose credibility or at least two of the terminations on a transfer motion to transfer under twelve b three or fourteen for what you're not allowed to do though is what jim judge hamilton unfortunately did here isn't take those findings based on that factual predicate and apply them to a twelve month fix which never gave us the chance in effect calling it a rule fifty six without ever converting it without ever affording morgenthau machine an if we met her opinion your honor is predicated almost entirely upon the competing declarations of mr hoffman on behalf of american piping and mr gilmore on behalf of  morgantown machine there is any number of key factual determinations relating to contract formation what constitutes an offer what constituted the acceptance of what was on their website in  that hasn't even been aired by the party should those decisions are all wrapped up in imbedded in judge leroy's decision which were in no way attached to part of or fairly considered part of what complained about the price quote in the purchase order how did they get into the record the i'm sorry how did the price quote and the purchase order get into the record price quote in the purchase order constituted the offer by one did they get into the record my apologies are they were attached to the complaint all right so was it proper then to rely on those in ruling on the twelve b six since they were attached to the complaint yet shown all right so why isn't why isn't  i thought judge hamilton did rely on them and therefore it would be helpful for you to address why those aren't sufficient to sustain the ruling well if that's the case your honor the terms and conditions by definition but almost as a matter of law be here clickable and our case would not have been dismissed because the august fifteenth price excuse me the the purchase order of august the fifteenth and then the acceptance or order confirmation by american piping of august the twenty ninth none of those documents would indicate that the terms and conditions of american piping or the contract was subject to the terms and conditions of american piping that's the key fact here you're a contract i don't get it all if you look right in the cover of the a p quote thirteen twenty four forty two says it's all terms are subject to standard terms and conditions in the lower left hand corner appendix one thirty four write the document does not say that the agreement is subject to those terms and conditions was not attached to the complaint be definitive on that my apologies the purchase order was attached to the complaint in the aug twenty ninth order confirmation or attached to the complaint my apologies are i misheard the question the august eleventh document was not attached to the complaint and comes in through mr hoffman's declaration so it was well why can't we treat it is converted summary judgment motion if the if it's undisputed that these are the correct documents are not the correct documents very hotly disputed and frankly not i mean that they are authentic documents and that if it's a legal question then whether a contract was created it's a bit well there's a couple of issues there your honor if i may that there it's not a legal question as to whether something constituted an offer that's a factual question that is clearly factual issue whether or not that august eleventh document constituted an offer and your honor no i'm saying even take your view that the purchase order was the offer yes sir and it says while you're on legal question whether that mean isn't it a legal question whether that means that the well the perp quote if i may address that your honor that if you look at the top of the ice quote is incorporated into the shore there and that's an argument the they're making  wo quick comments if you know the specifications for this part were two pages long if you look at the top of that column where you see that quote it says parts size description that per quote incorporates sol that the size and technical specifications of the part there's no case that ever been decided that we're aware of your honor if we look hard where there is a double layer of incorporation where it would incorporate a quote which we then incorporate terms of conditions and in order for that to reflect the intent of the parties runner would require a lot of discovery that would be a heavy lift that quote it was never intended as mr gilmore sed declaration of fab wishes that twelve confirmations my recollection your honor yes ok of course it says terms and conditions to please review it for accuracy terms and conditions can be viewed at but it and it has the same numbers from before that we've been talking about referenced well in in a century on are the numbers now changed by the way to a sale number not a quote no that's very significant here the numbers actually change they're now being keyed off the offer which is morgan pounds purchase order of august the fifteenth the number switches to that secondly and more importantly at no point do these august twenty nine documents say that the agreement of the parties is subject to the terms and conditions of american that language drops out and this whole discussion is really raising the problem here that the decision by judge hamilton was premature and discovery should have been permitted if in fact the facts are as we contend we will prove them if as american piping contends they will prove them in fact the vast majority of the cases cited by american piping are on after a trial like one beacon and eight years or six raids them on summary judgment these are not the type of issues resolving factual and credibility determinations that are resolvable on a twelve b six it was made rightly i was i've got to tell you just very quickly frank i was misled by your statement of issues because i don't see the classic should have been a summary judgment arguments but but go ahead save your time from what you're case which is what was the ruling of the transfer order what was the ruling of judge lioy when she heard the motion to dismiss and transferred the case based on the applicability and enforcement of the form selection clause and more importantly how did the appellant's see that issue i would direct the court's attention to page one hundred of the appendix where in their opposition to the motion to dismiss or transfer in the northern district of ohio appellant stated the aim of a p p s motion extends beyond the validity of a form selection cla enforcement of that clause is possible only if the separate web based document in which the form selection clause is set forth is deemed incorporated by reference into the parties agreement that's how the appellant's understood the grab a man of the motion that was filed by my client judge leroy stated the issue as follows when selection clause are part of the contract between a p p and m m h o age and second whether the form selection clause if a put the ball is valid and enforceable after reviewing the facts of t standard terms and conditions of sale are part of the party's agreement and in particular whether the form selection clause they are in applies and requires transfer to missouri after reviewing the arguments and the record judge concludes page eleven of the addendum to the appendix at page one eighty four the court concludes that the standard terms and conditions of sale are part of the party's contract can't it be appealed now that it cannot be appealed now because this court lacks jurisdiction not on not the transfer part but why can't the conclusion that the whole terms and conditions were incorporated  there for you when on the merits why can't that be appealed now because that would constitute a review by this court of a decision by the district court where white her final bottom line is defend its motion dismiss is denied for failure to state a claim gal but but all she had to ax on is the motion to transfer venue so there was no ruling on the motion to dismiss and in ohio right well i respectfully i think she did rule no it was as miss is it  without prejudice yeah i mean bring it up here and that's what we review and we interpret that is she founded on necessary to rule that sense she was transferring she was going to allow judge hamilton and that's what we can review where is there jurisdictional problem the jurisdictional problem becomes in the application of judge lioy transfer order which was the law the case and was simply applied and followed by judge hamilton and here's how the appellant's interpreted that transfer order when they filed their motion for reconsideration in the northern district of ohio the transfer order has the potential to eliminate in whole or in part plain his claims so they interpreted the transfer order as incorporating all of the standard terms and conditions of sale including the form selection clause and including all of the other clauses included in those standard terms and conditions of the problem is you're saying and unappealable transfer can decide the merits of the case for all time and it can never be appealed that's of it can't be your honor it can be appealed to this court upon motion to retransfer the cases are clear that that is the procedure appellants could have followed had they desired this court's review of the transfer order or what if they want to acquiesce in the transfer and they just all of the terms and conditions they argued against the positions they took in the northern district of ohio they argued in front of judge hamilton that the only issue decided by judge leroy was the incorporation of the form of form selection clause how could that be the contract formation documents did not say this quotation and all sales arising from it are subject to the foreign selection cla the quotation in the contract formation documents said this quotation and all sales resulting from that are subject to a p p s standard terms and conditions of sale which are available upon how do you say it got before anybody well it was placed before the court in the declaration ohio you know high ok good that resulted in the ruling by judge  that the standard terms and conditions of sale were incorporated and a part of the contract judge you hamilton found that the order the transfer order did incorporate all standard terms and conditions of sale including those that excluded and disclaimed the implied warranties and there was no nothing left for judge hamilton to do except to look at those implied terms and conditions and see if they complied with missouri law and if they validly excluded and resulted in the defenses to the implied warranty claims there was nothing to do for by judge hamilton except to look at and apply the law of the case with ois i understand if we don't agree with that then you think the case should be remanded no your honor i think that i think that this court lacks jurisdiction right to do we don't agree with that then the case should go back from the discord to address the merits of the well i don't know how it could if this court cannot review the transfer order that was applied by judge hamilton and the courts say that clearly here to counsel the strongest words you've used our law the case law the case can be changed during the case while the case is still going on well the case is on transfer strongly discourage that your honor because of comedy and because there is a remedy which the appellant's did not pursue the remedy is to apply for a motion to retransfer the transfer order is reviewable by this court had appellant filed a motion to retransfer before judge hamilton and she denied that so they are not without a remedy they admitted in their pleadings before judge hamilton the hamilton that they had considered the motion to retransfer and decided not to do it so they s review of the transfer order in ohio with a motion to reconsider and an application to certify interlocutory appeal they had another option in that circuit which was to file mandamus judge lioy stayed the execution of her transfer order to allow them to pursue those remedies so i don't want the court to be left with the feeling that a or without some remedy they pursued the remedy of reconsideration and certification for him law to tory appeal they did not pursue the remedy of mandamus they did not pursue the remedy here in the eastern district of missouri moving to read transfer the case that is why this court lacks jurisdiction twenty eight u s c twelve ninety four except for certain interloc orders and matters affecting the federal circuit appeals from reviewable decisions of the district court shall be taken to the courts of appeal as follows from a district court of the united states to the court of appeals for the circuit embraced in the district i cite the court two additional cases from our than those in our brief pony computer versus equus computer systems in missouri one sixty two fed third ninety one decision of this court in one thousand nine hundred eight the eighth circuit lacks jurisdiction to review transfer order issued by the northern district of ohio citing twenty eight u s c twelve ninety four another case t e c four court visas versus wal mart stores for federal third five ninety nine one thousand nine hundred ninety three decision the eighth circuit lacks jurisdiction to review a transfer order from a district court sitting outside the circuit citing again what if we just say we're reviewing judge hamilton yeah i guess i gather you don't have an argument on the merits here you're all on jurisdiction well so if we disagree with you on that then the merits of your honor are did judge hamilton correctly apply the ruling of judge lioy that a p p standard terms and conditions of the sale were a part of the contract those standard terms and conditions of sale were identified in the declarations and they included the implied warranty and disclaimer clauses that judge hamilton enforced the appellant's argue that the transfer order only incorporated the form selection clause it's true that judge leo oyo enforced and found valid that the form selection clause that was the only issue before her she left it to the transfer required to determine the validity and force ability of other clauses in those standard terms and conditions and finally i'd like to comment on the many statements from this podium by the appellants and in their brief there is nothing to interpret in this contract case other than the objective intentions of the parties as determined by the words they used in their contract pointed out to visit our website do in ohio right so how's that even before so they visit the website to start the whole game here well it was certainly a part of the record that was before judge hamilton through the declarations of the parties and this whole series of negotiations which occurred over the course of several months between sophisticated commercial entities and the appellant's had initiated it by going to a p p s website to request a quote there after they submitted several quotations exchange numerous documents and information and as a result the record before you is complete as to  is not part of the complaint thank you the aug fifteenth offer the purchase order is in fact the august twenty ninth is not on the second point that i would like to  council proceeds as if we were morgantown was moving to somehow appeal the transfer order the transfer order is final it is not being it is not the subject we did more than acquiesced in that we accepted it judge him judge hamilton had the case we were pleased to proceed before her we of value waited whether to seek retransfer we looked at the law which is horrible on the issue and frankly it's one of those motions that you file hoping not to win because you could get stuck in a jurisdictional ping pong match if she pushed us back over here and we decided rather than go through i want my instincts are going to follow motion you don't want to when it should be telling you something that we would acquiesce in that and proceed on the merits judge was very careful your honor in limiting her opinion to the to the transfer in the venue issue did not in any way indicate that she was looking at the merits of the case in fact the exact opposite is true five or six times in virtually every one of her opinions she cautioned that it went no further than venue the merits of the case should be disputed and litigated in the court to which it was being transferred