about the court has raised the issue as to whether there is diversity jurisdiction in this case i'm assuming what the court means by that is whether there we met the requirements of seventy five thousand dollars rather than whether there is actual diversity  should there i think that then they admitted in their answers that their principal place of business was in some state other than the state of pennsylvania and each of the defendants is located in the other jurisdiction  and i think it has been i'll be happy to address the issue of the subsequent breach of the court like that but i believe it has been has been pled and also has been admitted by the defendants with respect to the issues in this case your honor i think the principal issue is that the district court applied the correct standard of review and making is decision with respect to whether this contract required payment for three years where they did not require payment for three years that's just not the case your honour's the language of section two of the agreement itself specifically says in the event that the client this case alpine during the term of this consoling agreement rate discount increase you want to get your voice up please sure we can hear you i'm sorry i have very bad colds i rashida course indulgence in the event of the client which is alpine during the term of this consulting agreement attains a rate discount for any additional recoveries or savings they were achieved by the defendants on their own we say we're entitled to those things that we were responsible for for three years they position was that there was no causal requirement here regular but in your reply brief referring to this the second sentence of paragraph two is your and you say that is why the thirty six month period for payment of its feet in the consulting agreement to protect san sanch marc prensky so long as the defendant have better rates than they did before using smart trans recommendations it is limited in time and inspire in scope it applies only for thirty six months and it applies only to the level of savings resulting from smart trans recommendations that's correct your honor now which is your position is that there is no causal connection or is it that your client is a title only to the level of additional discount and seven fifty five dollars we're not saying we're entitled to that additional discount we are saying that there's a building block that we were responsible for that the defendants used our recommendations for to get that first discount which they built the second this going on i think that's what the court ignored i think that's what is one of the basis for our claims in this case we're also suggesting to the court that the court nor the fact that we don't use our recommendations already written documentation and when documentation was ever produced we deposed the u p s representative for the record in this case it shows that he had no knowledge of any written documentation ever actually doing those parties please the court i'm patristic i'm here representing all of the pallies one eight hundred flowers mary london and fannie mae ken kraft and maxfield because the court did ask us to address the issue of  jurisdiction in this case i would note as judge smith noted that with respect to one of the defendants harry london i believe that our answer does not expressly state that i corp but i will note for the court's convenience that that is in fact in the record and that is in the record actually in the record below at docket number eighty eight where there is an indication that there in london is a corporation because the court did ask us to look at this issue i do want to raise one other issue that does relate to the amount in controversy we believe there is an issue as it relates to the amount in controversy because we have five separate parties all of who are alleged to have been part of a contract but only one of whom actually  is as our research has indicated the third circuit has yet to rule on the issue of what some circuits have called aggregation but in the golden case in two thousand and four the court did discuss the issue of whether multiple defendants at the claims against multiple defendants can be aggregated for purposes of finding jurisdiction in this instance the complaint merely alleges that defendant alpine and hurried into a contract that alpine started to pay stopped paying and then there is a final allegation that all defendants are liable  for alpines breach of contract in looking at this issue it does not appear that there has been any allegation of joint and several liability which the golden case discussed as being one way to look at this in a better way than just calling it aggregation so if you look at that clearly the court has jurisdiction over fannie mae which was formerly outline and flowers due to plaintiff allegation in this case that flower's is now responsible for fannie mae's contract we do believe there is issue as to whether diversity jurisdiction or the subject the amount of controversy does exist as to the remaining three defendants because there is clearly if you look at the complaint no joint and several liability alleged nor could subsidiaries who are not parties to a contract be liable for the breach by its parent  having discussed that issue i'd like to move on to the substance of our argument because i think it's clear that if you adopt the analysis urged on this court by smart tran you would have to have a finding that's completely contrary to any law that in fact parties who are not entities who are not parties to a contract can nonetheless be liable under the contract  result we suggest is never the case you would also have to ignore the plain meaning of the it's an ambiguous contract taken as a whole and do as smart as don and that is to separate out and isolate several portions of that without law the contract as a whole in this case the district court did find to thing important things one the contract isn't ambiguous and i no a result that smart tran agrees with they they move for cross summary judgment the court also found there was no breach well how did the court get there it looked at all the terms of the contract construed them to gather as it was required to do and looking through all of the provisions of the contract found that clearly the way the contract reads is that smart tran is intitled to its fees only as long as the savings achieved by alpine under the contract were as a result of its recommendations in doing that the court properly concluded that based on the various provisions of the agreement that said that there was no breach because the various defendants are an alpine paid those fees as long as they were achieving savings through smart trans recommendations when they were no longer doing so they properly stopped paying there was no longer an obligation and as the court noted smart tran could have included other provisions to include the things that it didn't but the silence of the contract on this issue doesn't mean it's ambiguous and doesn't mean that the court can rewrite the terms now i want to turn briefly to the other defendants who were party to the parties to the contract  with respect to ken kraft and maxfield they were never parties to the contract they were at the time a subsidiary of alpine which was the contract in party in fact smart trant invoiced alpine and so if the contract apply to the subsidiaries which is the way it reads it merely means that the subsidiaries as long as they were enjoying the savings through the recommendations  would achieve savings but it was alpine that was the party band not any of the subsidiaries who were parties to the contract once alpine and at once  worse by an out of the alpine group they no longer were subsidiaries therefore the contract didn't apply to them at all and further it's undisputed in the record despite smart tran's allegations to the contrary that even if you could find that ken kraft a maxfield at one time were parties of this agreement which we suggest you could not fin as a certain point in time the point in time when they stopped paying and in fact were no longer using smart trans recommendations they entered into a new agreement with u p i s because suggest there is that there were still at there were still an agreement with you p s however the recommendations made by smart tran for savings had no bearing whatsoever on the new contract used the party's historic shipping characteristics and market rates not rates before they testified and refuted by anyone that in fact they didn't consider the two thousand and five agreement they didn't look at it at all that in fact this was imposed upon these parties and they accepted it without any negotiations whatsoever so our position and that is that the smart train recommendations were of no was that a causal connection between the recommendations and the savings was not required at all but i now understand as they did in the book library that what they're saying is yes  it takes a causal saving of a savings because of the connected to smart trans recommendations but once that happens the contract says you've got to pay for thirty six months whatever happens on that would you say that that certainly is smart transposition that was rejected by the court below and i think in doing so the court construed instead of looking at that single you have a three year requirement they said you have a three year requirement as long as the savings that you're get that are effected were effected through smart trans recommendations so in other words the contract has a limit of a three year term however every provision virtually in there talks about savings affected by smart train savings as a result of smart trans recommendations so once that underpinning is removed while there was a three year term then you get to a point where if you are not utilizing those recommendations to achieve savings the fundamental purpose of the contract is no longer have again been refuted testimony as to how savings were earned after there was a reorganization and remember it's not the reorganization that stopped the process and ended the savings it's that the recommendations were not no longer used to achieve those in the case of one eight hundred flowers on it had a pre existing agreement with u b s preexists and no involvement hile smart tran attempts to create an issue of fact on this on this point in fact there is no genuine issue of fact that both of these parties were in fact added will be a writing it doesn't suggest i don't believe a particular writing but there's no question that both parties of that contract agree and stay did so under oath that these energies were in fact added to the contract and i believe there are e mails that go back and forth there certainly was not a written a danda but when both parties do it and agreement agree that in fact parties subsequent parties were added i don't believe that creates a material issue a fact that they chose to do it in a perhaps slightly different way than their contract allowed now i do want to spend a small amount of time if i can on one eight hundred flowers because i it's would be amazing stretch of the facts and the law in this case to suggest that one eight hundred flowers which had nothing whatsoever to do with smart trans at any point in time somehow became liable under the contract between smart tray and alpine merely because it purchased the stock of alpines successor fannie mae and fann mae's subsidiary harry london the mere purchase of stock of another corporation does not in fact give the purchaser any liability for the subsidiaries contracts both of these companies that were purchased by flowers remained in existence they still remain in existence and operate separately to this day and there's no argument that of piercing the corporate veil or that somehow there's an agency relationship with this that would find otherwise instead what smart tran has attempted to do is suggest that because in the stock purchase agreement the the smart tr contract which was a valid enforceable contract at that point in time was listed as a material contract does not suggest that it was assumed or assigned to one eight hundred flowers certainly i was there would be a provision in the contract to that effect instead it merely suggest that these were doing during the due diligence identified as material contract of the company the company being fan to eight hundred flowers and that they were in fact identified in the contract that cannot and the law in fact cited by smart tran doesn't stand for the proposition that a purchaser of stock becomes liable for the various contracts of the subsidiaries that it urges so in our view with respect to one eight hundred flowers there can't be any argument that it was ever a party to any agreement with smart tran and and therefore there can be no liability to that or any other party in this matter for that reason we respectfully request this court to affirm the decision of the district court and on behalf of all parties and find that the summary judgment on their behalf was appropriately entered thank you very much liable on a contract if it benefits from the contract sort of a third party beneficiary analysis but not quite that analysis you don't need to reach that this point either i think you want to use i think with respect to the issues