we believe that the issue concerning the notice of appeal has been appropriately and fully addressed in the briefing however if there are any questions concerning that i'd be happy going to arrest those as well first on the issue of removal and remain and this is simply a case where the plaintiff acting pro se named party incorrectly had the right party in mind attempted to serve that party and actually left the complaint on the second attempt to serve with that party but it was simply got the name wrong that was the california party that would have destroyed diversity in the the motion to remain and point of skated plaintiffs will now confidently add the correct california party to in an amended complaint the district court completely ignored that argument that pleading by a pro se plaintiff construed liberally could even be considered as a motion to amend the complaint there that was simply not addressed at all by the district court in the opinion which simply denied the motion for reading and we believe that that is reversible error and the police roller derby does not dispute any of this all they say is that there was no no cause of action alleged in the complaint against that misnamed party we believe that that is not correct that it was alleged in the complaint and also that it was explained in the motion to remain and back to the notice of appeal because of it's an adequate  as it was prepared by pro se and reading it liberally that it identified the beams claims and referencing the the earlier opinions by judge mclaughlin which related only to the motion for remained and to the summary judgment motion wh rule three one a and also the spain case from the seventh circuit the naming of the beam in the caption is sufficient by itself in addition the statement concerning the earlier rulings by judge mclaughlin panel noted that a notice of appeal is just that a notice it isn't a motion or a pleading and in that case after the corporate officer filed a notice the lawyer promptly had a formal appearance and took over evidence filed the opening brief in this case pro se this is another distinguishing factor from this case that if that is correct your honor however we believe that now that the pro bono counsel has been appointed and all of the supplemental briefing has been completed by ourselves time protocol that operates retroactively to take a notice of appeal and i think they make it all right i'm not sure i understand your question here well i mean i see all kinds of problems and simply because a lawyer then pops up a long time down the line and says i'm here to argue the case that eliminates all the problems with a notice of appeal the the problems with the notice of appeal are first that it was signed by mr evans and second the issue concerning whether it provides notice i don't think mr evans signature has anything to do with the issue of whether the notice provides notice roller derby about  of briefing since we joined the case we won the case on the pro bono panel appointed up and and prior to that this issue had not been raised until the opposition briefer older i guess would we would be happy to to stipulate to disregard mr evans brief and just consider the supplemental briefing to be the briefing for the case we joined the case when we were asked to join the case by the court and we don't believe that mr  actions prior to that should have any impact on whether d v m has standing to a few moments was was of modest various times by the district court that he couldn't do this by himself they have counsel right that's correct however he had anyway and signed  notice of appeal and filed a brief all by himself without getting counsel he was that actually happened in several instances throughout the take he also filed a motion for reconsideration which dealt with issues that are related to d v m claims and at that point judge carter made no art let's go back because i was thinking about that not really listening to you for which i apologize go back again and tell us why the room give us your removal argument again this was a situation where where d b m and ev filed suit in state court i attempted to serve a company that it turned out was called california advance force he believed it was called pacer states incorporated which was the trademark that had been used by that company party this was a situation where he's not attempting to add a new party he's attempting to correct a mistake in naming the earlier part he didn't name the right price he did not name the correct party did he ever because i don't think to name the party he thought was the correct party i mean i don't recall if you ever attempt to screw a man of any point along those lines he it was some statement but then it never happened so if you look at the record as i look at the record the way it is shows complete  the record shows that mr evans indicated that plaintiff's will now add the california are we supposed to write an opinion that accommodates that i mean that just says you don't even have to follow any of the rules just if you make a statement oh well that's good enough that's the even far beyond liberally construing pleadings and things like that is that it wasn't even addressed by the district court how are the motion without even giving him a chance to a man with a view to actually make a motion or did he just say something he didn't make a formal motion how do you write an opinion that says even though he didn't make a formal motion even though he didn't take any steps to to do what he said he wanted to do nevertheless at this point we're going to let him we're going to say well it was close enough for a motion to dismiss which then was converted into a summary judgment motion he was almost done briefing the motion to dismiss when suddenly found out it was a summary judgment motion he was or that's fine counsel and he's dealing with this remained issue under those circumstances i think that you can say that the statement in the motion to remain and is a request to amend the complaint or at least should have been considered by the court as a request to amend the complaint and he should have been given time to do that an that's quite an argument in the breach of contract claims very very briefly we have two arguments one is that it was an executive order contract that it hadn't reached its conclusion both parties continued to perform and under california law that permits the following of a lawsuit after the terminations of the contract we think that the district court and the supply california law on that issue and second fraudulent concealment there are actually three instances where where  the cause of action were concealed first incorrect sales reports were provided to mr evans and to the which which failed to identify all of the all of the sales that had been made second incomplete documents were provided price waterhouse during the audit those documents were not sufficient to permit these professional accountants to to audit the books with with under general accepted accounting practices and finally most egregiously there were altered documents documents that were provided pricewaterhouse which redacted an entire year of sales and that was not learned until those documents were again subpoenaed from and and these documents which have which are clearly altered there has been no attempt whatsoever viral or derby to address this whatsoever it's simply an accidental to permit roller derby to hide information from mr evans upon which to keep and furnish honest accounting of sales and they used best efforts to develop and market the patented products that is a situation where we're giving him an evans we're relying on roller derby is honesty i think that creates a fiduciary relationship also  we've been asked to say that the roller derby made payments on the half of mr evans to mention financial al adamson and stephanie ashok who and that indicates further that there was a fiduciary relationship i hope to leave some time complaint in state court in state court as well as in federal court the corporation the entity needed to be represented by counsel and so to give an additional kind of latitude to a pro se litigant who isn't a process in that event or shouldn't be one on the issue of the removal there won't there always has been complete diversity in this case there and there never has been a party that would added to the complaint that would destroy that diversity  they do if they argue that california advanced sports i think is an entity would have destroy diversity but it was well within the court's discretion not to allow that party to be added even if it had been properly put before the court that were against this party but in actuality they didn't the party wasn't necessary for the plaintiff to get completely the party with a wholly owned that they wanted to as a wholly owned subsidiary of roller derby and was not the contract in party in any sense so that it would be hard to know where that would be any kind of claim for relief that they could assert against that party there's no question but that the party was that witness but simply being a witness to the litigation doesn't mean that the party was necessary for the litigation to be named as a party on the summary judgment itself we believe that the court ruled properly on all the statute issues there was there's no question but that mr evans knew well earlier even then was the evidence that was provided to the court about the potential about the breaches of contract alleged breaches of contract about the fraud he i had been talking to different people at factories and so forth connected with roller derby and he had learned from them that there were greater shipping of his products and wasn't what he thought was the case from the documents that he had gotten there's no question but that he knew about these issues long before the four years previous to filing his complaint and the claim that there's an issue about tolling the documents that they claim were altered in some way and provided really goes to proving up damages and not to the issue of liability which is is and they have plenty of are there some language in here to suggest that it could be placed on the pay from another source and i just read this for the third time and i can't find you know what they're talking as i think what they're talking about is they're saying that the study percent ownership to the extent that there might be some value to that other than the royalty payments that there would be another source of repayment and so that would be kind of a security for it that i'm putting words in their mouth i make an argument for them and that but i and i would say there's been no evidence that the that there a couple of quick points your honour's first of all on the fraudulent concealment that document that they say goes only to proving up damages it goes to the existence of fraud and a breach of contract it is a document that shows a line of sales for nine hundred eighty nine that document was provided to the nine hundred eighty nine falls within the terms of the agreement and during that period one thousand nine hundred nine we have nothing in the record to show certainly should not be decided on summary judgment whether they fraudulently concealed this cause of action the only other points that i would make are that  lang versus ashcroft