prime contractor for the establishment and operation of a massive immigration detention facility enduring taxes but the district court held that us position is for even though you might collected for over thirty thousand dollars a year for being the prime contractor for jelly it oh no duties of care no legal obligation whatsoever to ensure the wellbeing of the families and children detained under that theory you had no greater duty than you or i to ensure that children were being treated appropriately identified as the contractor in the header on that very same page there are several other references to service provider slash contractor or service provider or contractor in which the terms are interchangeable  exercise should be done by the district court at the motion to dismiss stage we have alleged in our complaint that you i was the service provider and i took on obligations under this agreement and it wasn't appropriate for the district court to decide that issue in the st instance more importantly our argument about duty under section three hundred and twenty four dollars and the restatement doesn't rely on learning being the service provider under the contract actually point here is that you agreed to be isis prime contractor and it was getting paid an enormous amount of money to  correct that's correct and that's one of the main concerns that inspector general had you know the general pointed out that you were a was always legally responsible for this entire agreement there was no contractual relationship between ice function i d s they was to allow i don't get it regarding immigration let me see if i understand council your position your position is that this contract is responsible for the record in this case and it seems to me to be a basic contradiction to say that the agreement is absolutely crystal clear that your client  responsibility for the claims presented in this complaint yet in the negotiating process they demanded that the a private contractor course said they'd give them a hold harmless aren't those two explicitly say only the service provider is performing and she served outline contractor finds that service provider should be and it's made even more explicit in the agreement between honor whether they would appeal irrespective of what the contract says or how it can be interpreted or whether it's ambiguous or not if you have also filed a motion for summary judgment i don't think so your honor i think it would be the same appeal because we would be relying on contractual documents and if you want to rely on the player's allegations they are the ones that allege their complaint that you know it was merely a middleman that comes from the complaint they allege that facility it would have been more difficult and you are just relying on the contract the contract and it is fine and it isn't that what you're trying to get to you just want to do it with out of the examination of the facts right then why not examine the facts you say the document provides is not ambiguous at all what's the standard on a motion of this type given provision that my colleague judge baier referred to describe the lawyers the contracting party as printer and isn't it true that in other parts of the document elodie is referred to as the service provider no i don't think that that's true at all i think the service provider is the party that is responsible for providing services the fact that the contract refers to a contractor and service provider shows that they have two distinct the waiver principle only applies if they're trying to insert new claims not a new argument well that is a new claim that is essentially a negligent selection claim and if you look at the complaint the complaint negligence claims only allege that decided to analyze this question by asking whether in mere act of signing the sub contract alone gave rise to an independent duty of care that maybe a slightly different argument but we think it's fairly encompassing the claims that we brought in as properly before th