lower court impaired the ability of a b c to collect on its claims well ok but let's focus on what the standard every view is and i don't doubt that that that would be what they would argue about we understand  certified the judgment and thereby impaired the ability of a b c to collect on its eight million dollar judgment they the action was clearly under reasonable and i'll tell you why under fifty four  the court has the right to certify a judgment even if there are multiple parties and multiple claims so long as there's no just reason for delay the question for this court is what's just reason for delight when the party seeking certification is insolvent and there's a large eight parties are solved it both parties will get their judgement in the ordinary course pre judgment interest will accrue to both of them and at the end of the day both judgments will be valuable and collectible because the parties are s it were not wrong there was no bankruptcy at the time it was not a factor that that court should have considered after getting one at some point and then somehow the stay was selected or that's right there was a subsequent bankruptcy after this decision and it was lifted so that we could proceed those things but then there was the attempt to a man and the court for false i mean products or something and what the court had said was hey you knew about this fifteen months ago when you knew about before you filed the lawsuit and now you to amend us and you're really only doing that because i mean not that it goes to the heart of it so you're trying to if i lie would amend it then i have to reopen discovery and then that would delay everything and then that would get you what you want to and so i just don't see a little bit the attorneys knew about it and that's really the problem that the court and the court have a problem if you if a b c will about it why don't you play that well and i guess that that's that's pretty much of a stretch from the standpoint when you're saying you're not going to pay a bill because of some issue i mean the best one that i can think of is that they it's like heroin dealers that get some suds or something like i mean that they just delivered to you in your honor i think that that misses the point of in this case it's exactly the opposite the pre judgment interest is ten percent it was above market and if anything that should be a factor that militates in favor of delay and against certification use the same principles are also  is the standard is that abuse of discretion is that different from clearly unreasonable it's simpler and i think it has to i think that they're both abuse of discretion standards the right or courts laid out a map laid out a road map of what would happen in this situation and we think that there's just court abused its discretion when it failed to follow that road map and it failed to provide any reason for failing to follow the roadmap other than the same reason of new jersey found that there was no displacement specifically with equitable settle but this point did deal with a very very similar issue in the morton guarantee case where the court and gauged in  payment rule of three four one eight of the u c c and the court held that the equitable remedy of restitution was not displaced by the final payment rule of three four one eight and the principles to be gleaned from that case that are relevant to our case is one the u c c drafters intended that the courts would use one one of three an equitable principles to create exceptions to the u c c provisions to judges have a duty to apply those contracts because we want parties to continue to operate in the ordinary course even though they may have a dispute but that makes no sense of one of the parties is insulted there's not going to be the continued operation third of all this is a very limited i come back because there's not enough time right now but i will focus on that when i come back ok thank you  i said that but they're also they're going to take it because their time means that you owe them eight million dollars and they have to pay you two point two million there and you're in fact crafts day and they're never going to get it well they will be in bankruptcy with the other creditors and they can make c section to just seven seventeen because it could not start off with two gets because they were under separate contracts it knew that dialysis west was going to be able to collect that money right away and in contrast a b c was going to have to wait a few years while it proved  its claim and it had to wait for all the third party and fourth party claims that had been filed in the interim to be resolved so what it did is it tried to go off the works tried to retract its mission and and insert an issue of fact regarding the i don't think the district court gave a reason why it's not the case well i believe it gave several reasons not only were the merits separate and not only were the amount of money large but most importantly what a b c was trying to do was get the very relief that section two dash seven seventeen c would have forbidden was trying to make an end run around the governing law and that frankly is an equitable because there are other creditors involved it's not simply a situation between these two parties but a b c was trying to do like to reach that issue i'm happy to address the propriety of denying the set off because i think it's not really a jurisdictional question it's really well round wound up with the merits because the question is was a set off proper or improper i'd be happy to reach that question if your honor would like on that issue we come to this court with an agreement that the set off was improper under u c c section two seven seventeen that's no longer contested they've made an argument under the contract but i think the district court handled that exactly right section twenty of the parties vendor agreement did not provide for sat off it was simply a return provision that allowed a b c to return both conforming and nonconforming good the other case law but the overwhelming majority of the cases so hold the u c c to seven seventeen specifically addressed when set off is allowed in it's only allowed under the same contract  i don't believe it has at least not in october track on that point that is correct now he's arguing for an exception in cases of equitable and solve an equitable exception in cases of insolvency but there is simply is no such exception exception here so what you're saying is he's asking us to go where no court has gone and the u c c has specifically not gone exactly and we submit that there is no right to an equitable set off and even if there weren't in theory the district court addressed the only possible equity that there was this the only possible equity was effort of was insolvency and the district court considered that and found that that equity did not overrule override the rights of other creditors that might be resolved in the event that dialysis went well thank row so it really is at best on their side and if you are equitable discretion in the district court decided one it's not available as a matter of law and two even if it were available as a matter of walk i in my discretion and deciding that they are not going to allow you to do that so often the district court was i think right on both sources and mr brown's first going to address prejudice twenty comes back so my question to you would be and that just the court had not had a traffic ok i think there are three kinds of prejudice and i like to set them out for you first of all we have to keep in mind that this was a motion filed to evade a pending motion for judgment on the pleadings now this court has correct if i can explain in finding that it would have been a huge amount of additional discovery that would be required that was already had a lot of the you had a lot of a time left for discovery well we have we have six months but we haven't made very much progress while you could've gotten the extension dis and basically dialysis west bought product and resold it down the line so when we were sued we had to bring in our supplier who brought in their suppliers so we have a whole lot of additional parties that are going to be brought in now to some extent those parties overlap but not completely so complication of the lot discovery i just can't see that as a threat to this well i think it was within the district court's discretion to find that it would greatly complicate the case and throw out the existing schedule moreover there was evidence cherry prejudice because i think actually they point that out in the properly destroyed between the time that the first putting was filed in the kind the second plane was filed well i think no showing like that while i think what we have is the records were were poor but we also would have had the problem of having to go back a couple of years and ask people what strictly moreover that burden is be certain to the lead and prove is the condition preceding to the claim and they simply didn't meet their burden if the if the notice is considered to be the complaint four month delay here we've got a fifteen month delay it's also a perishable product so what they're relying on primarily is this e mail that actually appears in the record that we are one forty four one forty five and that is an e mail that was sent to dialysis west and at the top it says look at this below there's a discussion of an announcement by the manufacturer of that there was some tainted procrit and some tainted effort in the marketplace the e mail look at this said nothing about the procrit in particular it said nothing to indicate you have sold us watts of procrit that are within this  suspect a lot numbers it was simply no notice of any problem with the program that was sold the only notice that we got was much later fifteen months later when they moved to a man of course they didn't include that in the complaint that they filed history few months later so we simply had no notice of breach and as a matter of law that means that the amendment was futile and we don't even have to reach the issues of undue delay and prejudice and  three months between the time that the original response to the counter claim was made and the time that we filed the motion to amend during that three months there were no depositions there was nothing that took place in discovery that was at all prejudicial as far as new parties counsel mention that would be many new parties however d w i has not identified one that new party that would have to be named the district court didn't identify one new party that would have to be named we don't concede that there be any new parties that would have to be named we don't and the record is devoid of that the district court also said that this is this conflicted with the bishop admission that we made in the original reply that's true but that is what happens in circumstances under which we could have prevailed and we set forth in a reply memorandum i think nine facts that we would approve if given the opportunity to it was just too early to make to make that decision and the lower court i think recognized it and whether or not they be genuine and paragraph twenty said that we'd be entitled to full credit for any goods to be returned the question is what is for credit me well it sounded like it's just like