order and then secondly there was an order for costs to keep the reverse of both of these summary judgment was entered against plaintiff son to federal claims one brought under federal securities laws  events ranging from selling large assets firing hire important people including in particular for this litigation  let's see if we may turn for a moment to the ten b five claim you can certainly have a ten b five claim when you when there's an issue of stock but our plaintiffs here are not in the usual situation the plaintiffs here are really not purchasers of the stock how why is this a ten b five case how do stock in it cause damage to the planet is like this but not every day but not as purchasers not as purchases not well there was an attempt at purchase of their remaining shares but there was never was that the sale mr graves was for inadequate consideration and therefore to harm the corporation we cite the first circuit cases solar showing where a  the stock restriction agreement on its face says that it was a new securities has to be for cash and this was not a sale for cash it was a sale in exchange that we say that was and you're saying that that omitted a material fact of the amount of the issuance of security right do you agree that by not responding in writing to that letter your client consented to the letter to the issue into the major event that's that's detailed in that letter the you know not to be issues that happen it says right here know but doesn't the n r a require how do you require the right you're trying to hold the defendant to the letter of these agreements and your client didn't observe those very agreements right not quite like any securities you're saying they should have told us it's ninety nine percent and they didn't and they omitted that but even if they gave mr graves one share stock he would then become the majority shareholder would he die because they fifty fifty that's correct ok and therefore your claim would really be a breach of the agreements to hold the directors meeting to actually issue the stock correct going to decline to exercise jurisdiction over this isn't that where you're at in this case well that's that's certainly what the magistrate judge found and weakly disagree with that because he said that there was no admission or miss army shareholder at that point well not until the series or actually issue he's agreed to an issue as that would make him a minority shareholder if he didn't exercise his pre emptive rights under article article seven would require that the preemptive rights from pretty rights provision article seven require that he be offered that chance to to purchase and the fact that he wasn't communications grades wanted him to contribute more money and he and he declined so grades puts up this hundred eighty five thousand dollar note and basically saved the company correct because it was going under as well that that's in point is he didn't know how much from the letter he didn't know how much talk right and at some point that notice had to be given either in that when we say if there's only one communication it should in one communication happen which is the may twelfth twenty p letter participate and now i put the money and to try to rectify things all he had to do was write a letter and saying i disagree and if he had to do it it's this we wouldn't dear but he didn't and that doesn't mean good morning it was a hundred eighty five thousand dollars and one point eight million i'm sorry to read it it was about who's counting right it was a lot at a time where the company i think the records undisputed really needed some money i'd like to put some procedural context for purposes of what's before this court when the parties cross flew for summary judgment  the issue of whether there was a material misrepresentation or a mission was the heading in mr b a felts paperwork but he never argued in the mission he argued that the admission came up after after they lost and then they said well wait a minute we're going to put in artificially all these added requirements is to what was required in that may twelfth letter there is no basis in the record in article eight or in the s r m that that additional information that you now own fifty one percent of the company that thirty nine hundred shares are going to be issued there is no provision says that the article seven issue no where in the record did they show how once you've complied with the major event in article eight that article seven is somehow triggered there is no tie between those two and  reality is the representation was also that there was a forced sale of his interest mr b a felt still owns his shares the subsequent two letters that have been discussed went to graves attempting to purchase those shares the valuation in those letters it which there's a dispute go to the valuation they don't go to the prior issuance of the an issue as to those it would be contractual and as judge how poly found it would be a state court issue can i ask you a more fundamental question are the two federal counts here count want to count and  were against the individual's correct there again is a risk correct because i'm looking at yes but the following sentence says it's also done derivative leon b have ra and but it's against the individuals as a derivative count for the benefit of the corporation the corporation was the move back correct yes the individuals were not the movie that's correct and the judge entered a summary judgment for the corporation even though the corporation wasn't the defendant so i'm i'm confused about who's before this court as a party as a result of that we have the citation in the latter part of our brief the talks about when you have serious allegations you can treat individuals or executives and the company more or less collectively this is been a hotly contested case we have been for years in front of judge trial and in order to streamline the economics and the issues we have not redone or federal council could they not have but on the first round of summary judgment that led into all of this they did a yes but on this on the ones being appealed they did not i will let mr j back address that if that's all right but it was our understanding and i was at the hearing the judge calm that he treated all of this collectively and was rolling over those underlying motions into this motion and he addressed those in the i believe in her direction to his order concluding that those would not be addressed so it was always the court's intent through a whole variety of emotions through the history of the case to to collectively treat the defendants together when it was more efficient and was that articulated in the proceedings in the district court i believe it was in the in the order from judge holly where he had the parties get on the phone with him and go over the full effect of having crossed motions for summary judgment and how that might enter how that might lead to entertaining the subsequent motion for summary be a fell down before this court argues the issuance of equity constituted a material misstatement or mission we believe that he is incorrect on hold in light of the fact that there was consent the element which he pled necessary to give him federal jurisdiction after all this court this case started in state court instead of filing an answer they filed in federal court and had to go to the issuance of the equity once it was determined that the equity interest was consented to by not responding in writing to the latter the court held that it necessary element to the federal capitals the provided for federal jurisdiction were no longer present with that i'm going to pass it to mr saber thank you thank you for your time  motion said i want to have a phone conference with everyone and that was my temper twenty seventh those transcripts are and i believe this gets so close to what you were to discussing earlier said if i find there's consent and i'm not saying i will or won't but if i do i'd like to know how that affects these federal claims and he invited the movement at that time mr doyle because it was his motion to brief those specific issues now we did file a joint or into the original motion for summary judgment on the deck action the cork view the defendants collectively as a whole and  all the facts reburied i don't need introductions all i really want to know is if i find there is consent how does that affect these counts so to answer your honor's question earlier by joining in the original motion it was our perception that we actually joined in the supplemental motion is what i'll call it so i think lee grace and jim board individually did join this motion through the jointer of the first motion and that's certainly our position plaintiffs that's because i don't think there is any argument as long as there's adequate notice and clearly judge i gave adequate notice of his intent and they had an opportunity to respond clearly had an opportunity respond so whether or not we joined in this motion certainly the district court had the authority to enter the order so i think based upon those two reasons and also the interest of judicial economy i think with coupled with mr boyle's arguments which simply by the court to review those i don't think reasonable reading of article eight which deals with the major events provision can somehow be read to trump article seven's preemptive rights those shares were not the forced sale that i was alluding to is the fact that mr b also went from a fifty fifty partner and in a company that at one point was like it was before with night person over nine million dollars to having a share interests that was valued at fifty thousand dollars a year later so definitely he has interest was taken from that did you raise that with the judge or if that was raised not and in the summary judgment proceedings but it was raised in an earlier motion when in response to thirty minute