for this court to decide first whether b k ybor king europe is all refer to them in oral argument and it's at their preferred to the braves waive to the form selection clause from the franchise agreements that issue both issues should be decided in favor of the a pollens and that the district courts memorandum opinion should be reversed in the case should be returned in its entirety for trial on the merits of the  view and the facts of this case to warrant reversal and re manned but because i have limited time today i would like to focus my argument on the issue of the form selection clause and if this court has any specific issues clear that the court abused its discretion once you look at the issue that we had to be given the in belief to fairly him and under rule fifteen and that by just dismissing it as moot and not even addressing the issue when burger king corporation which is based in miami and was a new party was going to be amended and that we had independent tortious interference claims and disparagement claims against that entity ok going for know from not trying to make you make the argument with the issue of whether b k we've waved to the form selection clause i would like to start at the outset that the appellant's assert that the relief that we're seeking is neither extraordinary nor is it changed the precedent in the circuit enforceability of form selection clauses it doesn't ask this court to set outside of its prior president or the president of north american specialty because what that case said is that a party can waive a right either firm in intent tional relinquishment of that right or conduct that is so inconsistent with that right the waiver should be found so in this case what we're asking the court to do is simply look at the expressed language of burger king's own contracts which it drafted and its own conduct and dealings both in filing the guarantee lawsuit and the pre litigation behavior that burger king europe engaged and that was directed towards texas the opponents and the northern district of texas which the district court found in its underlying opinion was sufficient to assert personal jex jurisdiction over burger king europe but nonetheless the district court and force the form selection cl so the pollens contend that the analysis of the issue of whether b k you waive the form selection clause begins with the examination and or do novo review of the language in the form selection clause the franchise in the franchise agreements the language in the guarantee and the actual complaint the b k you filed in the northern district of texas by gate b k s on admission in its briefs and in the motion  different contract if you're honest question if either the guarantee letter agreement and the franchise agreements are different documents the answer is yes the apologies contention is that they  can't be addressed separately or divorced from each other as part of the legal analysis that the district four was required to undertake and by grasping on the concept of the letter of agreement guarantee being a separate document it's a legal false construct that ignores burger king's own form selection flaws in the best way for i believe for major drash writers argument is wrong if you went for one you went for all to the extent that there was a dispute between the parties relating in any way to the franchise agreements their application or their terminations yes and both the guarantee lawsuit and the spa purchase agreement lawsuit both it involved the agreements themselves their application in their terminations and even if they were different restaurant you file that one lawsuit then you waited on all maybe not but on the record before us and the dispute between these two entities and mr kronk and yes and this is is why your honor and the fact that there are different restaurants is a distinction without a difference which burger king has focused on in his briefing in which i believe the district force latched upon to because to guarantee he is tied to the franchise terminations shall be in munich that was in german it stated german law applies and is actually written in the franchise agreement in the same vein the letter of guarantee is not a that guarantee which is our record x soaps at section eight states and again it's in german signed in germany and in switzerland and its state it but mr according to the german civil code i christians are ok at my berlin address hereby guarantee directly to fulfillment of obligations of the respective franchises a rising from the franchise contracts so the guarantee lawsuit and what he guaranteed was whatever those obligations were that a rose from the franchise contracts in the form selection clause dealt with any dispute a rising from the franchise agreement and again both under german law governed by german law both in german and webster's dictionary defines arising from as originating from a source well what was the source of the guarantee lawsuit the burger king europe followed those source was the underlying alleged obligations of the french or as ours in germany to pay franchise fee and if you examine the k s complaint which was filed in the northern district of texas it which is contained in the record it's replete with references to the fact that although they're suing on the guarantee they know they have to show that there's an underlying breach the didn't german franchise owners have failed to pay allegedly franchise fees and that's what they're seeking to recover in their complaints which although they  characteristic has a brief one count complaint i understand their argument but when you look at what they're actually seeking is a claim that arises from the franchise agreements and disputes arising from the franchise agreements have exclusive franchise agreements are you fan it applies them to any franchise agreement or to that specific print size agreement that you're reading your honor their record is clear that all the franchise agreements are form franchise agreements  written by burger king and they all have the exact same language whether their forms or not them are you saying that one applies to all the other three each one is looked at individually i mean it's a separate contract whether they're all form or not each one is a separate to their claim for the restaurants that they claimed owed franchise fees which was the basis for the guarantee suit those all had the exact same franchise agreements with the difference of various stores and maybe some other terms that might have in china and the generally they all vested exclusive venue for all disputes arising out of those agreements their application or their terminations immunity arising out of what eventually agreements it says that agreement this agreement yes and all of the franchisees have the same form selection clause and almost identical agreements in fact burger king relied upon the declaration of their in house counsel m dall as the basis for the motion to dismiss or for narcan beings who made exactly that assertion and in fact they didn't even put all the franchise agreements in the record and only relied upon an excerpt based upon his representation that they were essentially form contracts and  so if you look at burger king's complaint their assertion is that the defendant guaranty the obligations of the franchisees in their respective franchise agreements and that the franchisees have failed to perform those obligations and so the underlying claim arises out of the fan franchise agreements and that guarantee case was filed in the northern district of texas and by doing so burger king way the where are you saying she got off track not looking at this identical language what as we argued that by filing the guaranty lawsuit that the form selection clause had been honest which burger king europe was sending to the plaintiffs in irving texas to texas residents claiming it was going to unilaterally terminate the franchise agreements in texas again terminations as one of the words in the franchise agreement claiming that the application of the provisions of the franchise agreements require their consent and making other positions with my clients the corporate entities in the stronger those letters are also conduct inconsistent with invoking or standing on this form selection clause and the court found that that conduct was directly directed at texas residents such that the court could assert personal it's illustrated up the analysis the court looked at the letter correspondence between starbucks and cutler and said you're sending all these letters back and forth talking about the greenman talking about terminating it talking about indemnity talking about whether somebody complied with it and nowhere in there did you say but once we get to a legal proceeding i'm going to assert it washington no where in the record to burger king ever say that if we ever get to a legal proceeding we're going to assert it and  under that case but our argument here your honor is that this false construct that burger king has created that somehow the guarantee stands by itself and that they didn't try a case in the northern district texas or we had to try the underlying obligations of whether these franchise agreements have been breached they've created a false construct to try to keep the entire argument focused on the here and t and divorcing it from the underlying for both sides are either on post published opinions or opinions of the district court there just isn't a lot here except for what we do know in the circuit is that even if they didn't intend to actually relinquish that their conduct can evidence that they did well you know i probably will not only one but you know not so much the moving targets here but you reach cases just a little bit of a new hans differen what she followed their own case law or whether she was not as you are going viewing that that was sufficient to be consistent conduct to demonstrate a waiver court's lengthy memory and opinion and our position is where the very honorable district judge erred was that we believe that she drew that line that if there's a guarantee letter agreement that references the franchise agreements but doesn't have its own form selection causing the second page that that ended the inquiry and she adopted the legal argument by burger king europe that that was the end of the inquiry that if they brought suit allegedly on just that one document that legally that was the end of the analysis ok that's  will delete it from the recording of let's find your is the morning tall of you i may please some court i'm curious about whether there are different ingredients in our german hamburger versus an american hamburger i mean dismiss in the courtroom and on on the issue of form not convenes we are talking about two well we are talking about two different kinds of agreements and multiple different franchise agreements so the first case that was father's between the parties in connection with this dispute was burger king's case in the northern district of texas to recover on a guarantee not in a franchise agreement not in any of franchise agreements but simply on a guarantee and that guarantee as everyone form would be required or mandated in any dispute involving the guarantee and so the debt guarantee relate to the franchise an agreement i mean are they in conjunction with each in germany each franchisee there were different corporate entities that signed those franchise minutes on behalf of the franchisees all of them were different they are not there's no overlap between any of the franchise s or their particular franchise agreements that were used to evidence of debt in the rocky case and the franchise agreements and franchisees and parties to this case there's there's no overlap they are agreements it simply says you've heard as ms capps mention that mr bronson guarantees all of the obligations arising under those franchise agreements and other franchise agreements relating to entities that he own directly or indirectly and that operate a burger king restaurants in germany so we sued in the northern district of texas because there was no form selection clause and so let's talk about the legal principles right that the district court considered and that are going to govern the outcome of this portion of the court's opinion one is in this case on these different franchise agreements we have mandatory forms of election laws that require that any dispute be heard in munich and we know from the u supreme court's decision in two thousand and thirteen atlantic marine as well as the earlier decisions by the supreme court of the strong public policy to enforce those provisions absent extraordinary circumstance in the supreme court language and the supreme court in that decision sets forth the private and public policy considerations the analysis that accorded to perform in considering whether to honor or transfer a case based on grounds of for not convenes and the appellant don't challenge any of that analysis by the district court they're only their only issue is whether the district court erred in not in not finding waiver now waiver under texas law ins you have a right and you knowingly intended to relinquish it right that's what the north american decision that ms capps just mentioned states and by the way that's not a form selection case it's simply states are the general principles for waiver in all of the cases in which there are in which waiver was found in which it was found that a party a right to have a dispute considered in a particular form and knowingly waive that right in all of those cases including kettler versus starbucks one of the parties to that very contract with a form selection clause sued somewhere else and then later later when it attempted to invoke the form selection clause was found to have waived the right to insist on it here interest in the form selection is not what we have here we don't have a contract to guarantee it's not an artificial contract it's a legal construct right the law recognizes as two separate agreements or multiple separate when but we didn't know there is no case that comes to the conclusion that they're asking of you and that is where some parties to a separate contract with no foreign selection clause were helped to have waive full right to have a nother dispute heard in a particular form because they filed suit in one form on a contract with no form selection clause there's no you asked the judge t ask what was your best care what's the case you really want to look at that's the north american case the thing that was mentioned here it's not a form selection case it simply tells us what the elements are of waiver so there's no case like this one  breach of guarantee against mr grant king now i need to produce evidence of the debt these agreements are evidence right of an obligation of some other parties none of whom are to this case who will burkean royalties and other fees so we put the franchise agreements in evidence to show hey this is how royalties are calculated and then we put a witness understands that they didn't pay us and but we also put the guarantee in and evidence the demand on mr  brocki and the fact that he didn't pay those debts but yes you can divorce them as we did we didn't sue on the french as a means we didn't sue the franchisees we had an independent charity as an independent instrument and you can sue a guarantor without suing  principal ababil or and that's what we did we made our independent claims now as i said there's no case like the one like this one where a court finds waiver right on a form selection clause but there are multiple cases and we bancroft life case from the southern district of texas both where one party sued on a contract or document or obligation that had no form selection clause and in on another claim later sought to invoke the plautus in the courts and those decisions all found no way for because like here the contracts sued on or the claims made did not depend upon the underlying document so so really it's a simple as that now they do bring up the language but not so i'll touch on it of the franchise agreement this question of what does it mean arising under the form selection clause in the separate franchise agreements with different corporate entity parties in this case mandates u in this court in its opinions distinguish distinguishes between words like arising under and words like related to in connection with you know a rise in here under to hold that arise from the contract in other words claims made on the contract so were we to have sued in munich the arising under language would have mandated dismissal of the case because we weren't suing  these franchise agreements our claims were made on the guarantee so if there are no questions i just do want to emphasize that again although you know i'll make our strongest point here our strongest point here is that the guarantee has no form selection clause and there's no case like the one they would ask this court with a decision that that like like that they're asking this court to read so it's same agreements the waiver and all that course there's you know just close scrutiny you make it sound you know credibly straightforward which worries me a little bit but i read to there was an arbitration case so i'm saying you know it's a little murky in the law because none of them are you know franchise agreements with foreign selection clause so we barneys principles out of cases that are not the same but to waiver requires an intentional relinquishment of unknown right we didn't have the right discount he had no form selection three the key decisions are and there's no the closest we can get or the decisions we cited bancroft like like life right so the plaintiff in that case is it it's an insurance company and they loan money to the defendant to finance insurance premiums and the defendant signs promissory notes reflecting that it in the promissory notes have no form selection and there's a suit on the promissory notes and the defendant the insured counter claims claiming a breach of the insurance contract and the suit that was brought by the insurance company  notes was brought in texas in the southern district the defendant counter claims and says you breached the insurance policy those clearly were related right just like this case you wouldn't have the promissory notes if you didn't have insurance contract the promis southern district of texas texas found that there was no waiver because just like here the promissory note had no form selection clause again just like here there's some relation right there's no notes without the policy there's no premiums to finance unless you bought the contract and the amount of the premiums due or so forth in the insurance contract and so that case is very similar to this case we also cite c s ex transport it's not a franchise and these are not franchise cases but it's really contract law that's key here and in there's nothing particular about the franchise fact so there are the plaintiff alban action in florida in duvall county four in the jacksonville area for breach of a credit agree freight charges it was a contract to move freight by train through the distribution system for the benefit of the defendant that defendant in the duvall county florida action said you waived your right to sue here when you sued me in connecticut for certain freight charges that we do understand and there again the court held well the claim under the statute didn't involve a form selection  and certainly those freight charges presumably arose as a result of the contractual relationship because the claim involved one where there was no form selection was the middle district of florida held that there was no waiver so i think those are the two best cases the best case they side with kessler and kettler versa starbucks but there that was one of those cases that i was talking about where starbucks made an indemnity claim on a contract of fornia against a chair manufacture and claimed that this was a personal injury action where starbucks was sued it third parties in the manufacture saying the plaintiffs injuries are your responsibility later the manufacturer susan virginia for it back to bring it back to action for the court to determine who's responsible under the contract starbucks and wait a second we have a washington state form selection laws in our contract same parties contract not a different contract under that same contract in california so we we have to look as close as we can get based on the facts but really keep in mind the overriding principle as instructed by the u supreme court that these these these forms election losses are applied except in the most extraordinary of circumstances so let's talk about the motion to amend the court order denying the motion to amend denied it is moot the court does provide a reason and there are some cases from this court that indicates a preference for a more explained opinion then perhaps the one provided here but we did cite to this court in our briefs other district court cases where the court's denied is moot motions to a man complains brought up in connection with a case where the court determines that they know the form in which the dispute ought to be heard and so there's the vanderpump case out of the sudden this to florida and the for god all shipping case both cases denied motions to a man where cases were dismissed on for not giving and let's talk about why that makes sense right we're in the ports decided that the parties have contract to have this dispute herd immunity the pla the plaintiffs here seek to amend their compel plaint on the eve of the ruling on the motion to dismiss they filed their motion to amend around seven or eight i know i thought a motion to amend ten months after instance you said ten months later it was still within the scheduling order that deadline it was not on its face wouldn't it untimely and you know our cases say you can did not i would be futile so the court doesn't make a few chill of the you know ruling so as you are in bad faith or something else you know your case law as well as i do in terms of you know allowed to mean so just meet you where you are there in terms of some of the usual bases you know would have been untimely yada yada this is not one where somebody has previously propose that maybe the district court did not view the differentiation in these agreements that you're arguing and felt like well before installation clause and all that when it strictly tied to  and so one is corporal of here was correct to find it in that it involved all the same transactions there are many complaints in their motion to amend says our min arises from the same facts and transactions as the original sell it all rises on their attempt to sell under a share purchase agreement and the fact that as they allege and there are many complaints that burger king was centrally trying to make the market in some fashion minish the price that they could that they could fetch let's say  plan so the court could determine it was moved very quickly we cited cases were i believe this court and others at the circuit level of health that were reasons for denial or apparent from the record then it's not an abus discretion for the court to deny a minute and so what was apparent from the record just as in the women first is jacket that case that case the parties in the win case they stuck to him in six weeks after the case had been filed in the face of a  motion to dismiss that had been soft and so the question is whether it was fair for the district court to find that there have been unreasonable to lay on the parts of the appellant's here by waiting ten months after the lawsuit was filed to seek amendment waiting rulings of the magistrate on the jurisdiction lisc every issues before seeking amendment and seeking amendment like in whim in the face of a motion to preserve jurisdiction somehow at the last minute feeling the ruling on the court's motion to dismiss and make one other quick thing they talked about letters that went from our client to texas this is on the form not convenient argument that's that's just mixing jurisdiction in german mr graca signed it in his capacity as a resident of berlin and he maintained business offices in berlin and they have asserted in their briefs that they couldn't serve mr growing to suit him in germany that's translate the court so that can't be that explain nation for their behavior as to why they waive their right why they sued mr kronk in texas only they know and it was a strategic decision on their part but they did it and it has consequences  interesting that burger king said that there are very few things that are very straightforward about this case but here something that is and i think it's really important in the record in the guarantee case they asked to recover attorneys  the right to recover attorney's fees only rose out of the terms of the franchise agreements themselves that allowed them to recover them under german law and they and in fact sought that relief and obtained it so their separation serious divorce doesn't carry water with the actual position that they took in the northern district of texas and the case that was actually tried and they say in their brief it is relevant that is part of the br guarantee claim the amounts under the separate franchise agreements needed to be proven this court must accept that legal reasoning that the case that they tried and that they had to prove an underlyin breach and they had to prove to franchisees dog locations if this is your rates and keep the separated and divorced because there's a separate letter agreement that mr brock is signed and again the letter grammont the guarantee said that he was guaranteeing the but we don't have to get there because a rising from the chording to websense mates it's origin is from well the origin of to guarantee case is originates from the franchise agreements that have the form selection cla and so we don't have to parse whether it's in a rising to related to because we're already there with the very exact terms that burger king selected and we're argued there with the exact same contracts that they dr came in in the middle district of florida and said that was a federal claim and i'm not going to consider whether that involved the contract and i'm not going to address that because that was different here we have a guarantee which on its face to be sued on is that mr grocott was guaranteeing the underline franchise agreements so there are t intertwined and there's no separate cause of action but the public policy issue that he talked about is really important here and i think that your honour's have recognized that burger king's argument has one aspect of it it's incredibly expansive and one aspect that's incredibly narrow so there are narrow interpretation is that the guarantees unrelated to franchise agreement choose claims under the theory of direct benefits stoppel and then they argued in response to the motion to dismiss that our claims against burger king corporation a separate entity based in miami were also foreclosed and they actually in their briefing our judicial court well of course those go with the former are convinced to because this form selection causes so broad it just groups up everything so out of on the one hand they're arguing that the scope has to be merely construed that they possibly couldn't wave it but when it benefits them and they don't want to be a defendant in the northern district of texas it has to be read as expansively as possible even to the extent that in this rates are building to amend our pleadings prior thirty somebody tries to artfully plead and say something well this is outside the scope and all this is really fraudulent inducement or this is conversion in the contract it ended and we decided all those cases are based and that's what they're trying to do here in the course of look at it and said no it falls within the scope this was the intention of it i think there's no question that the district court error when it denied our motion for leave to meant under this court's precedent amendment must be freely given we asked him and not only lt maybe need to explain or show but maybe it was not an error i don't think that does your honor and this is why first of all as underlying trial counsel we didn't know when the decision was coming down so we were doing our due diligence adopted burger king europe's argument that somehow burger king corp itself ah so it was not a signatory to the franchise agreements was a separate legal entity was somehow felt with and this broad scope of the form selection clause such that it didn't even have to answer or be subject to the process of a twelve b six or a motion for summary judgment which is at a minimum what we were entitled to as instead of just having our claims through about on the principle of knew this and so on this record and particularly the the arguments that were put before the district court as to why we should have and there's no support under the controllin was of the view that the earlier ruling of foreign selection clause pretty much takes care of it all ergo no need to independently rule on the rest of this because not clear to me she about the rest of what you just minimum that the district court's decision to dismiss the ability to amend the claims against burger king corporation of miami would at a minimum have to be reversed and remanded because the issue of whether a burger king corporation fell within the forum selection clause of independent tortious claims against and for interfering with a contract with a third party that was never briefed or decided by the district court that that was fully enveloped within i think that it is implicit in the court's opinion that she must have found it was in there that she'll say to me boilerplate laws appeals from the judge not from them then you know the district court i mean we affirm cases all the time on any basis that the record allows it is helpful for the district court to tell us and of course we have cases that say that a district court doesn't give explicit reason but hornbook first appeals from the judge and so she's discretion by not letting us to me and because we had a new claim bloody body but it just seems like there are there are a lot of force in light of the amount of time that's gone on in the case it's just south of the loop to you know perhaps this case is about understand what you are going to particular in terms of the case law here but will like the rest of the take a real hard look at it and figure it out