dollars paragraph plan was sufficient to stand it will be six much all reasonable efforts that should have been in favor of the plan all facts played should be considered to be partners where the defenders argue that the end of court releases  affected the ability let's go forward on each contract like there were four separate releases and there are four separate franchise me have the court incorrectly applied defensive nonmusical collateral stop because of the lawsuit between my client and his business partner and they appl seems to turn on the idea that the state court suggested that maybe your disagreement but suggested that mark's claim mark and claim of a legitimate reason for terminating the contract in may that that was legitimate i mean that that scene now it may not be the holding of the state court but certainly the state court seems to mark's reason for terminating was real and legitimate him we reject arguments to the contrary that would be sufficient when i would agree ok so tell me why that's not here  maybe you ought to start with agreeing with him and then give another argument you know what they're not so might say you do agre those data entry of all of those agreements and going forward we have alleged numerous facts regarding breach of contract mr porter breach of card now i notice that the defendants in its response occurred three months three months after the entry of those releases all of that conduct has been sufficient and i think the case that we submitted in our own twenty eight j letter yesterday speaks to that point to plausibly plead a tortious interference with contract line mr musselwhite needed to plead  client mid atlantic in deuced a breach of contract between he and his business parker now looking at the complete paragraph seventy two and seventy three of you made a complete reference a transfer they indicate that mr musselwhite transferred his interest in the flamingo properties entity to mr chow shire and he did so to exchange for three hundred and seventy five thousand dollars now so i understand this argument but to the motion to dismiss was pending i believe mr musselwhite settled with the codefendant and then the district court took arguments that the codefendant made an appliance or so i'm an unusual position i'm not blaming you for totally understand that but the because i don't think the i don't think it's plausible applied because there is no breach if we're going to talk about collateral estoppel the district court determined that the release was valid excuse me the district were relied on the state courts determination that agreement that it is a valid agreement and i think the district court's reliance on that finding perhaps it is implicit but there is no breach of contract and i don't think and again this court can affirm for any any based on the record so i don't think there is i don't think you can plausibly allege any breach of contract so you think we should date the district court's opinion and because it references this ratification sort of infer from that that the only reason that could have been relevant was the lack of a breach that wasn't discussed expressly that must have been by the court said i think that's a fair characterization of hard maybe i'm not trying to be flip about it i understand that's i mean and i'm not saying we can't do that but that would be the sort of rationale we would give for those sets of clay that's correct your honor and it's our contention that those are the only claims that are at issue but more on the on the collateral estoppel point i think the district court excuse mr musselwhite and mr muscle role instead relied on representations made by mr harris who is who was my client's agent at the time i think by finding that mr harris made those representations at that restaurant was in bad condition but why do i get the next step which is harris's statements that it was in bad condition were true that last part is the part that seems to be missing i think your honor judge from the state court made numerous findings suggesting that it was true determining that it was true and if you're saying it was true and yet determining is true is where i'm having trouble if you look at paragraphs i believe it's finding a fact twenty eight dollars finding of fact thirty two suggest that mr musselwhite was spending less and less time at the restaurant that mr musselwhite had previously had problems and those problems had had persisted i think all of that is relevant to the district court's determination excuse the question is did he confirming truthfully or was he making up the conditions of the restaurant i mean your colleagues allegations or i suggest early right and we're just taking the claims that are may is that mr event i think that mr musselwhite us failed to adequately plead a plausible claim because i i don't think he has sufficiently rebutted the conclusion drawn in the d l a piper letter that the conditions of the restaurant the chicken and the improper food handling that things like that are untrue instead we have labels and conclusions but why don't we consider that letter at a motion to dismiss the letter was incorporated into the complaint your honor i think paragraph ninety eight of the amended complaint explicitly references the letter now how it gets in front of the court i think the district court correctly consider the file that was put to it mr musselwhite didn't object to it before the district court so we have the file we have his express incorporation of letter saying that letter exist acknowledging it exists and acknowledging he received it and i don't think there's been any  as to the tortious interference cline and the unfair and deceptive trade practices climb now whether it was raised as to the breach of contract and the good faith claim that goes to our way of argument so in the st instance i think it is my colleague characterizes what we've done as characterizes our motion to dismiss in the memorandum and support in the district court as making a catch all argument and i don't think that's true to our st argument to the district court was mr musselwhite has way has released the right to pursue these coins and that makes sense if you look at the allegations none of the allegations in claim to or claim three breach of contract or conduct during that time period which was the main discussion was part of the breach of contract play and when he responds mr musselwhite responds that's what he points to right i mean he  looking at the breach of contract claim at the specific allegations listed under breach of contract they're all about ongoing managerial violations they're not about improperly terminating the relationship so in our memorandum before the district factual matter but if you're looking at paragraphs one hundred and forty three dollars and the specific instances of breach of contract the specific actions that constitute a breach of contract based on those paragraphs there's nothing th but they're saying continuing because they're allegation of the time was listen this happened before and it happened after february so turns out like what happened before february is not relevant but the allegation of continuing included both before and specific reference in the plane to any action that occurred after the february th except the terminations and if you're looking at the types of breach of contract the specific allegations the ways that we allegedly breach the contract the may terminations is not included in there and i understand that's a semantic and kind of formalist reading of the complaint i know will accept that and i don't the motion to dismiss they respond by pointing specifically to paragraphs eighty one dollars ninety nine cents which are the ma discussions but they never say your honor that the may discussions that a portion of their claim is outside of those releases instead the argument the substance of the argument is that those releases were cured by fraud n plus the fraud as making both arguments tell me why i should read it otherwise what is the citation to paragraph eighty one and ninety nine so i think there are two points there the st is everything before february yes that's i think we're going to cut off but we don't think there is anything after february if you take the citation pair on page nine about the make conduct argument with respect to that is that it's not understand your question correctly we're only talking about the unfair trade practices claim because i think the contract point we've been discussing that at length and then the tortious interference claim which i would concede is related to conduct after the i understand the concern that and i think his response to that will be well you engage in a pattern to retake my franchise that was your m o i don't think there is any specific allegation that we entered into the release it was our intention to retake the franchise one dollar and two dollars even if we set out to retake the franchise some time after the february release that is an intentional breach of contract and i think judge wilkinson in the broussard case made very clear the reason that parties contract is to fix their liabilities and that  puting tort liability on a breach of contract even if it is intentional is too much that it it undermines the purpose of contract so i want to return very briefly to the tortious interference klein because i do believe that mr musselwhite has failed to adequately plead to tortious interference klein tortious interference claim again requires an unjustifiable interference that it does not i think we've validly terminated we would have validly interfere we had a business justification for interference interference is a high standard of police in north carolina it requires a showing that there is no business justification so looking at the d l a piper letter and the series of conditions that my client found in the restaurant i think my client had a valid basis to say we do not want this person even in a different role associated with us it's not just managerial deficiencies but at that point he would have been acting as maid atlantics landlord and mid atlantic people terminate leases for less than having an inattentive landlord and i think that that's exactly the concern here is that it land would have had this inattentive landlord now i merit and i want to touch briefly on why that is not entitled to the presumption of truth under all and this court's decisions like mimic chevrolet so in all of those cases the animating factor is labels and conclusions are not entitled to the presumption of truth and i think saying that things are generally without merit so characterizing something is without merit instead of explaining why it is without merit is in fact a label just broadly saying something is untrue i think characterizing something as generally without merit is even more problematic so if you go to use this hypothetical if someone comes home if you're if your child comes home with five grades on her report card and four of them are and one of them is a d it is not unfair to say that the child had generally good gr but it's not true that all of her grades were good so i think saying that they are generally without merit in paragraph one hundred implicitly suggest that the allegations in paragraph ninety eight that one of them is true it doesn't it does not  they could amend their complaint to fix that problem i don't know whether they could or not but in theory they could and so it's hard for me to see why at least as a prudential matter this core ought to reach out and resolve that they failed to adequately give the reasons when it would appear that you know they would in the district court be given the opportunity to if that was the issue at least if they asked for the opportunity to judge for it i'm about out of time i answered richard's question your honor leave to him in whether or not to grant something with or without prejudice is a discretionary decision in the district court and judge boyle did not indicate whether or not he had engaged in that discretion but i think it is fair to imply and i'm happy to submit a supplemental authority on this point when you dismiss a complaint it's presumed to be without with prejudice so we know he dismissed it but it would be with prejudice all the question is would it necessarily be with prejudice and without opportunity if it's on this alternative ground that you're arguing right the alternative ground being they didn't sufficiently alleged that the reasons given were bogus i think it would be because if you look at the development of this complaint the complaint as mr harris pointed out in his memorandum below the complaint is a largely a copy of one that has already been submitted elsewhere in a different case so we have this complaint that has already been drafted once there are opportunities to bolster the factual allegations beyond sort of the bare bones and i understand there are two hundred and fifty dollars allegations in the complaint but that doesn't necessarily mean they are fulsome allegations so there's this opportunity to bolster those allegations that is the complaint is then amended we finally motion to dismiss the complaint is amended the complaint is not amended to reflect any sort of correction up you know often parties will correct deficiencies pleading deficiencies pointed out in a motion to dismiss so this would be giving them a rd and perhaps a th bite at the apple to totally true but that's sort of a district court do not to make the decision about whether like this is one time too many or not i mean it is hard for us to make that decision is all i'm saying i appreciate that point your honor but again this court can affirm and offer any place on the record and i submit that judge boyle properly exercised his discretion by not allowing him to thank the y if you were back in the district court could you amend your complaint to with factual specificity explain why each of the claims made in the d l a piper letter was untrue yes it's not just the brief it's in your complaint i believe and in reasonable allegations that we made to be true you lay the argument the defenders have said well we can rely upon you know what mr harry say because if you take and accept what