briefly before i go briefly i'd like to go over the factual and procedural underpinnings of this because they bear heavily on the outcome when you do that which is and that's absolutely fine as far as i'm concerned but so what originally happened in the prehistory of this case is there was a case in the eastern district of new york also arising under the fair labor standards act into which mr head mr lynn excuse me into which sought to opt in under the collective action provision of the fair labor standards act that case involved me at the time excuse me that case of the time involved two out of three locations operated restaurant locations operated by the defendants there the three locations were located in flushing in midtown and in chinatown in manhattan in her claimed that he had worked at the all three of the locations john young limb and he had only worked in the midtown location at that time had been certified in the st eastern district case as to the midtown and flushing locations only therefore mr head in that case was not pursuing his claims as to the time he worked at the subsequently the plaintiffs in the st eastern district case sought to expand the scope of the collective to allow mr hurd to litigate his claims as to the chinatown location where he had worked that application had been denied therefore he john and lynn commenced an action in the state court in manhattan under the new york labor law to what had happened was there was a decision in the eastern district case decertifying the collective so they were no longer participating in the st eastern district now use so you were forced to dismiss that lawsuit filed in the wrong venue oh well everyone can make a mistake and we can now that we have to dismiss that it wasn't our fault gosh no it was the fault of the law or the laws of venue or whatever this sounds very strange excuse me yes and as i said i was one of the lawyers on this on that case and i was not terribly experience that that ask me what ultimately did end up happening once the case was filed in the southern district the court recognized that there were no claims as to the flushing location and we actually dismissed  claims there was no basis for the case to have ever been in the eastern district therefore the dismissal was not involved and was not voluntary regardless of the device we use under rule forty one but it was compelled and the statute one week of the filing because me following that there was the case proceeded in the southern district as in f l us a quick case normally would it moved into conditional collective certification as to the manhattan locations as particularly the chinatown location which had not been certified as in the st eastern district case the issue of the two dismissal rules brought up in passing in defendant's opposition to that motion it was replied to briefly in our reply to that opposition  namely no discovery had taken place whatsoever as to the plaintiff's employment at the chinatown location we still have to dismiss one of which was involuntary the rule is very clear the two dismissal rule applies only to voluntary dismissal your argument is that because then you w late in the wrong place because venue was laid in the wrong place and because there really were no no claims that could have been brought to get against the flushing location mr hope was the only one of these plaintiffs who had actually worked in the flushing location and at that time he was a participant in the class that had been certified in the st eastern district actually couldn't have brought his claims right and while he couldn't brought his claims twice he wanted to remain in the class  and the southern district recognize that when it decides to ask the plaintiffs to dismiss the claims against the flushing defense which we did because they really didn't belong there we reserved humans that location as part of the class in the st eastern district actually he couldn't know he couldn't he couldn't he could have brought a separate action in the user district but he was participating as part of the class he couldn't have done both any voluntary action on his part to dismiss a lawsuit that in fact could have been brought in the eastern district by one of the three persons  already in yes a member of the class and that was already ongoing and he brought nd action yes the st notice of dismissal is without prejudice but if the plaintiff ever dismissed a prior case based on the same claim or including the same claim then the notice of this missile operates as a adjudication on the merits now the supreme court before an answer before a motion for summary judgment but if there is a previous dismissal of voluntary dismissal as we have here then that is an education on the merits and it is with prejudice  in this case these three point started and voluntarily unilaterally just continued to actions whether it's a state court or federal court case their st action was a state court case which they discontinued against all defendants with prejudice and then they started a nd action in the eastern district of new  dismissal that was based on a stipulation with consent of all parties as opposed to a unilateral voluntary dismissal and i case it was held that the pla by the plaintiffs unilaterally voluntarily without consent and without a court order and the narrowly drawn rule says that it is an adjudication on the merits with prejudiced now the fact that there was a previous existing case in the eastern district which at one time was a conditional collective action and these three plaintiffs did  in to that but while the motions were pending before a judge ross these plaintiffs started a new york state action which they discontinued then they started in eastern district action which they dismissed it turned out that judge ross dismissed the conditional collective action  ttempt to discontinue against the flushing plaintiffs where there was an ongoing action in the eastern district in flushing of flushing defense against the flushing  all so that was litigated it was included in the motion papers and counsel was aware of that because we exchanged letters before the motion and counsel also addressed that in his motion papers  just to be absolutely clear judge to pro any and notified both parties that the motion would be considered a motion for summary judgment as against these three plaintiffs as a exchange of letters beforehand so there was no problem with counsel realizing that this was going to be a decision to decide whether an error previous dismissal was section cited here i don't recall that offhand and otherwise you know there's no proof that venue was improper because when they started this there in action they name defense located in the eastern in the st used in district court action there was an actual education on the merits of whether excuse me whether claims could be brought against both he and hatton and the flushing to finance the finding there by judge ross was that there may have been unlawful practice under the f l essay at the manhattan at one or more of the manhattan locations but that if there was it was not the same violation as took place at the flushing location these were not cases that belonged to get together there was no basis after that finding for there to be a claim by individuals who worked only at the manhattan locations against the flushing location there judge ross also found that there was no commonality of management and there was no single enterprise there was it was crystal clear that there could not be a claim against the flushing defendants that's why it was moved out of the eastern district after having mistakenly filed there that's why those defendants weren't eventually dismissed out of the southern district case scuse me southerners i thought we talked about the eastern after the southern district action commenced the flushing defendants were dismissed out of the southern illustrated the eastern district case eventually proceeded to trial that it's  for excuse me as for the procedural safeguards one thing that mr horowitz didn't cover at all was the fact that no discovery whatsoever had taken place as to the play disclaims their employment at the chinatown location the excuse me the rules fifty six dollars it's clear that motion should be converted into a summary judgment motion when only when there is no doubt that  c either discovery is completed or further discovery would be futile that was not the case here in the conversion into a summary judgment motion when it's inappropriate and i seem to be out of time version to the summary judgment motion was on the basis of that one was it not on the grounds that there was an independent basis separate and apart from the fact that procedural basis for dismissal because i don't believe that supported by the case law the case laws that you have to satisfy that further discovery would be futile or that discovery answer is yes you're correct but i don't believe it's supported by the case law yes ok thank you thank you both will reserve decision in this case