jurisdiction under the michigan long arm statute and governing to process precedent the district court agreed that there was no dispute that the defendant had transacted business in michigan under the long arm statute but found that there was not sufficient content contact or connection to the state in order to find it to satisfy due process however the trial record the affidavit and the complain demonstrate that the defendants suit related conduct had a substantial connection with michigan and it was the defendant himself who created that relationship by virtue of his travel and interaction with mag michigan with mag one of motive in michigan for example as set forth in the complaint i started with one part of the complaint i mean i will say i when i read the complaint i thought it read as if you were doing a general jurisdiction approach you know you were trying to add up all the contacts and say there's enough here that it doesn't matter the nature of the cause of action and of course it sounds like we're now having a debate about specific jurisdiction we are on which is what the parties have joining but you know if i look at your stiction venue which is on page four paragraph eight i guess i mean why why is that insufficient to look at that and then when you look at everything else you you say transacted business within the state of michigan you don't say transacted business within the state of michigan and this complaint grew out of this phone call or that phone call and then you have the next one which seems completely defeated by walden you know actions  in some places lead to consequences in michigan i thought you know walton doesn't do much help you much for that second one i think you're on i think walden is a good example of why this case is dissimilar  no you're making a slightly different point i'm not saying i want to hear to argue about walden because i don't think i don't think that's what you're really arguing i'm making the point that what you're arguing on appeal doesn't really match up with the complaint the complaint reads like a general jurisdiction and it's it seems like it's played that way just given what i just read your honor i believe it may well have been played as a general jurisdiction but if you look at the factual allegations in the complaint and you look at the  affidavits they do demonstrate where where is it dollars to blame for so i mean you have one case where maybe with one of our it's the horse case where you know there's a phone call in tennessee that if a never appears in tennessee but in the phone call there's a law during the phone call about the value the horse i'm not sure but the key point is the cause of action fairly grows out of something that happened in that phone call which was directed to tennessee so that's i'm like ok good that's good specific jurisdiction where is that phone call here or how how do you say well the business trips to the cause of action grew out of this or that business trip or that phone call if you look at the complaint and the two declarations so just tell me where in the complaint to care if you go to paragraph twenty one there's the allegation here that he directed meg automotive to share work with meg germany if you look at him and you would say that's part of the complaint yes it's bad to share work between two selves because he was exercising control as the de facto c e o of magh automotive and if you look at the dudek declaration of paragraph seven and the printed declaration at paragraph seven it states that the defendant came to michigan in december  fourteen he announced he was in charge of mag automotive and that they would mr dudek and mr pre nup would report directly to him and the allegation is that he from that point on essentially functioned as the de facto c e o of that michigan company mr mr prima in his declaration says that the defendant initiated e mails and telephone calls to mag usa three to four times a week this is back to the jurisdiction but it's not your honor because if you breach yes requiring one point five million euros to come from a course i don't know how michigan how many euro's but anyway assume it was essentially one point five million in europe euro's go from michigan to germany and also directing in paragraph twenty one to directing to so i understand that's part of just because that happened doesn't make it illegal so that's part of the fraud that's a fraud that is part of the breach of his if i do sherry duty his duty of loyalty the theory your  honor is that if you look at the complaint in paragraph seventy seven and eighty one there is the allegation that the defendant damaged mag's u s business and its reputation and he did so by virtue of such things as directing taking work away from magh michigan and sending it to mag germany he did it by imposing this administrative fee he did it by implementing intercompany pricing which required magnus chicken to raise its prices now all of this is part of his overall breach of his professional obligations which gives rise to the negligence claim and to his duty of loyalty because essentially what he was doing is he was taking money out of the crown jewel which was ma michigan and putting it in mag germany and essentially that undermined the entire value of the overall mag group that was part of we allege his effort to try to get a majority sale which was in his case which was in his unique interest getting that idea so how about on the  form selection clause the employment agreement ok so what would be the answer to this case if the employment agreement is only signed by the defendant and mag germany ok so just hypothetically that's all there is so he doesn't get guarantees for mag international mer my us no one on science it clearly has a you know germany's where we do the climate dispute litigation  wouldn't you say in that setting it's true there'd be nothing quite binding mag us mag anational whatever they are but wouldn't you say because they're related companies that germany is the right place that that would be my first instinct so just pretend the other stuff doesn't exist think about it's just a straight up employment contract between how to  and mag germany we have not found a case where i take their argument that these are closely related companies but what makes this case different your honor is you have an entity in favor of the individual he needs to make sure there are the resources to back up the guarantees of the much money he'd make well then if that were true then you would have them agreed to the entire country but they've only agreed to t did there is a reference in paragraph fourteen to mend holdings agreeing to the limitations period ok what if so what if that number eleven concerning secrecy i mean that clearly applies to at the place the parties are to say that seems to limit what meg holdings is agreeing to and it's just very very odd you would think that you might go about that in another way like a separate agreement with the undertakings and not having a single document that it seems like you could almost have predicted some degree of trouble arising  i i would make the point that as to the employment agreement and as to the dueling declarations an affidavit stet exists here because to the extent that we've alleged that the defendant was making rulings simply based on the declaration our burden is relatively slight here and the fact should we are given the benefit of the inferences here  but if the district court as we believe it did for example when it dealt went with the mine are with the defendant's refusal to look at minority a minority saylor minority investment district court said well the michigan people had nothing to do with that that is expressly refuted by the declaration of mr pre nup and mr du dec who said they were resident and citizen of germany the plaintiffs allege that he breached his duties as c e o of the mag group and has any state where this lawsuit could have been filed but it could certainly have been well certainly there must be because it doesn't survive in michigan but i mean part of the reason we're asking these questions is trying to figure out what your position is are you saying there's only one place this can go germany or is there another state that it would be fair or reasonable under all the law to bring this lawsuit in the u s we do not believe so your honor under this this contract was clearly directed to germany  entered into in germany it provided it there's there's actually no record evidence of that your honor and of course the plane has had an opportunity to really seek discovery on that issue and other issues but they didn't take it so all we have is a mutually agreed that a contract between the parties well the certainly the comply and also the this point in time correct well the burden is significant they have to meet each of the three elements of specific jurisdiction and they clearly have it's not a burden it's not the same sort of burden that they would have to meet after discovery it's not the same sort of burden they would have to make after a full evidentiary hearing the posture is different and accordingly the case law treats the burden differently right that's that's true your honor but i will point your honor to international technology consultants where the court pointed out the proposition you've just made it loses some of its significance when as in the case of bar the plaintiff has received all the discovery  sought with respect to personal jurisdiction which here is none and there does does not appear to be any real dispute over the facts relating to jurisdiction the there there were some disagreements rather not be given if we don't agree with your it and this is all that's needed i don't see why we shouldn't decide the issue once and for all or your honor i mean that that really can't be your position is certainly we rather not lose your head but i believe i believe the reality of the way this works is that if they establish a private patient case the defense still survives on remain and we would have a full and fair opportunity to litigate it but you just you know i just understood you to tell me there isn't anything else that could be brought to bear on the issue well we don't think that the plaintiffs could bring anything else to bear on the issue no discovery was sought but we've asserted the defense in the case and if the determination is that they've satisfied a factual prime  case i think we would have the opportunity to do disputed let me go back to the first point about whether there's an appropriate jurisdiction what's unique about this case is that neither of the plaintiffs resides in the forum in virtually all of the cases on which plaintiffs rely the plaintiff was a forum resident in the business relationship arose from a contract entered into with not for him plaintiff so the players would be more meaning if you agreed that there was a state in the country where they could sue your client i think they would have an easier road to hoe just by getting over that hurdle in florida well delaware was the gore place of incorporation but i don't think we would have the ability to contest jurisdiction in either of those places and if i might your honor the reason is this in a in a contractual setting the courts are quite clear that you jurisdictional contacts in isolation you have to look at the overall contractual relationship that's clear from burger king that's clear from this court's decision  specific about it and give you a chance to respond with your friends on the other side said when i said you know this looks like a general jurisdiction complain it's not very well pleaded when it comes to specific jurisdiction there are two answers which i think are the fair right one of them  work share required employees from michigan to go to germany and the second was one point five million euros goes from michigan to germany and that's all part of the fiduciary breach so why isn't that like the horse case where you call in to tennessee lie about the value of the horse and that's enough to be sued in tennessee to sue in tennessee your the reason for that is that simply not the claim that is pled the claim that is played is a claim as the district court found about misconduct in connection with the sale of this overall business the plaintiffs didn't plead the case you're referring to for a very good reason the injured party isn't here maggie automotive is not a plaintiff in this case they sold mega automotive so they obviously decided we cannot sue for damages caused to mag automotive instead your honor what they did was they make s following this i think i get it but i mean if part of the producer breaches driving a company you know into bankruptcy in order to profit german s the ultimate value of the sale they got which is lower than it would have if you hadn't driven the michigan saab into bankruptcy i mean why doesn't that fit together well first of all your honor it's simply not a claim that it's alleged on this  complaint i think fairly read but further your honor it's inconsistent with the plaintiff's entire theory the plaintiff's entire theory is that this operates as a single company the plaintiffs own the whole thing they're arguing that as a result of mr schmoke was effort to undermine minority investment opportunities the company as a whole suffered transferring funds or work between two entities does not logically affect the value of the companies as a whole the other major problem i think you have your honor is that these so called directives were issued by good in his capacity as the global c e o this is the kind of work that international executives do every day making decisions about funds going between companies whole notion is that in order to profit personally he chose certain things to do as opposed to certain other financing options that might have been pursued and that he was structuring it in such a why to benefit him sales primarily and all the different causes of action grow ad of that allegation believe and you're sort of overlooking the part of that how argument that deals to choosing one thing to do instead of another your honor i think there's a big difference between those two allegations those two sets of allegations because when you're evaluating the arising from requirement you look at the gravel moon of the complaint the overall causes of action in the overall cause of action are all about the misconduct you just described misconduct relating to the sales process that happened it's undisputed in germany involving german advisors investment companies outside of michigan  incidental connections with michigan have nothing to do as the district court found with that sales process but it's not being alleged in the back part of that self dealing or that breach of fiduciary duty it wasn't just the actual sale it was devaluing the michigan company intentionally i don't know how you separate those two you're and i think it's very  to be careful to look at what is actually alleged in this complaint look at the allegations there's no suggestion even in the supporting affidavits by mr prima that there was anything wrong with my mr smith allegedly is that for these types of out of state directives to make to provide a basis for jurisdiction they have to form the heart of the action that's what neil versus janssen se because there's no allegation that mr smith that did these things in michigan they're based on communications from out of the state and so the the allegations really have to form the heart of the action again this is this case is not about those two incidental interactions with mag michigan which is not a plaintiff and look at the prima affidavit he describes what happened in doesn't say it was wrongful doesn't say it harmed the michigan e and again the michigan and he is not a plaintiff here now the i do want to turn to the questions about the contract in the form selection clause it's important to recognize that a german court has already ruled on the precise issues that the plaintiffs are alleging here with respect to what happened with the ultimate how is their appeal still or what you know that it is on appeal so the the lower court ruled in germany and we've submitted that we've we've asked to complete the record i thought that the issue before the german court was whether he was terminated in accord with the german civil code and since the contents of that are not apparent to me it's not apparent to me that the signed me she's a rose that all ok well we have submitted in the record in the case you have the parties submissions in the german proceeding there are germany is the proper venue for or adequate forum for a breach of pollution or if they recognize that ten of law german law allows plaintiffs injured by fiduciary breach to sue and collect that's the question yes the case we've cited in our brief is loney vs the i do partner moore's page thirty eight of our brief holding that german courts provide ample redress w point in the german we move to add the german verdict to the record in the key point is simply that the court there rejects the theory that mr acted in his own self interest in advancing a complete majority sale of the companies and rejects all of the other grounds on which mag germany relied to justify terminating this is really an  german company and the holding company were defended only the only mag germany is a party in that action but it's undisputed on the record in this case that the common shareholder motion my daughter who's also not ours but if if there was a defense asserted that had to do with breach of fiduciary duty if it would have been the duty to the german company not the holding company well the mag germany specifically reserved the right  to assert those claims but the the plaintiffs are distinguishing here between who owed duties and which direction they're arguing that this was that mr smith was duties as manager of managing director of mag germany extended  whole and they're making the same claims of wrongdoing in that case that they are that they are your best case on the related company point with the reality that you know  doesn't sign you know they only sign is the paragraph two and five right out of the fifteen and you know the question is ok let's just forget that for a second all the sufficiently related companies for that to be the relevant or effectively binding your honor i think we have knowledge that we do not have a case we're on on facts like this one but the point is if the closely related standard of client is anywhere the case we cite is on page fifty fifty one is a touchy medical systems quoting the six circuits decision and baker versus  f if it doesn't work here where you have a common majority shareholder who signed the same contract i think the quite doesn't rise or what's the best case i think you t if if the contras if the contract is ambiguous on that is would you have parole evidence well we don't think it is him big u s because the plaintiffs have conceded that they're actually bound by article fourteen in their reply brief which is not one of the two articles that appear over their signature they would acknowledge that the statute of limitations and force made provision is binding on th what happened i mean look when you say they have an opportunity to to request discovery did the judge and jury an order that said that ok all discovery on jurisdiction has to be done by a particular date or exactly what happened on the contrary the parties agreed that they would that the initial breach in briefing on the motion to dismiss would take place without discovery so what the plaintiffs would have had to do if they wanted to seek discovery was in opposition to our motion say we need to take some discovery on these issues before your honor rules ok won't let me start with your question regarding procedure what happened was we put into declarations which we believe demonstrated a prime that they should case to the extent there is any dispute between the two declarations for example as to mr smokeless handling of the minority interest issue he said we had no involvement our declare and say we did have involvement once there is that type of dispute the district court should require discovery or hold an evidentiary hearing that's the law in the circuit it counsel said that neither of the plaintiffs are based in michigan that's simply incorrect paragraph eleven mag holdings usa its principal biz place of business is michigan friend of my god a motive no matter one of the two plaintiffs in this case mag hold is a delaware corporation its principal place of business is michigan its sole assett is mag automotive also a michigan respond to its point that you know m automotive was allegedly the victim of some of this stuff but mag automotives not a plaintiff because mag automotive doesn't exist but the essence of the allegations is that you should preach as to the whole holding company so who cares about things that w arterials mag germany was a black hole putting assets in funds into that was imprudent on his part and drove down the overall value what should have been done is kept up whether for anywhere where there's business because your level of generality about fiduciary breach it's always having consequences there in the c e o s or on the phone e mailing with everybody and one thing that seems a little unfair in this case is you've got the individual who has no other resources there are shareholders behind this individual to help deal with the expenses of flying back and forth and the company has a lot of resources and that that's troubling to me your honor i think our allegations here go further than just a c e o of an overall global operation because what we say is that he was on the phone three or four times on the value of a company where can you say that's not true when the value of the company goes down but he did have we believe his steps did drive down the value but he was functioning as the de facto c e o because of the the three to four calls a week the daily emails all of wherever one of the subs does business you what is the difference between what you're saying and what judge sutton saying you have somebody who's he's a global c e o he's actively involved in being the the executive over everything meaning that several times a week he calls the people on the ground in these various subsidiaries and gives them directions instructions and whatever else so you're saying that person having undertaken to do that can be sued in any of these venue's i think if the contacts are sufficient here and he intimately involved in the day to day operation of that business which is what we've alleged yes if he is functioning truly as a global c e o and his subsidiaries are operating appropriately and what's the and i just hear the answer if they're operating approaches appropriately then there's a sufficient degree of separation between the two such the desiderio would know the global c e o would not be subject to jurist and i don't understand the difference and what it what is the difference it's it's a degree of involvement your honor and in this instance our allegation is that he was engaging in self dealing he breached his duty of loyalty because he was putting his interests over the interests of magh automotive ask one question about where there is any i mean we can talk we can describe him as a global c e o we want to but is there any two places he's operating other than michigan in germany there there was a mag asia operation i don't know anything about the degree of his involvement with that i do know that if they go to florida florida for some reason i