in this case to try to wind what i believe judge watson absolute called a chord in not of a legal problem there there's nobody more desirous of having this case resolved quickly promptly and without just away my concern is that the certification in this case leaves this court without a poet jurisdiction and that we're going to be back here again arguing different issues in this does not bode well for an expeditious trama if you let me explain why under curtis right we have two requirements one that there has to be one claim and that is the certified claims have to be claims that are separate and distinct from the non certified claims we don't have that here your honour's the fact that the successor viability claim was dismissed on summary judgment and not certified on appeal like the merger claim was certified for appeal renders a whole host of problems that will bring us back here yet another day let me explain a key factual question that has to be decided at trial is which entity was using the equipment at issue was it met ex c p with whom my clients had a contract or was it smith's holding company the entity that acquired the parent company of medics c p because that's very important because if it was in fact medics c p that was using the equipment something to be determined at trial in the murder analysis doesn't apply it's moot whatever you decide with respect to the merger issue is not going to be an issue if the court in fact terms at trial that the equipment was being used by medics c p and not smith on the other hand if it missed that was using the equipment then we do have a successor viability issue despite the fact that the courts did not certify that fur and immediate appeal like it did the merger issue the successor issue is broader than was there a merger or assignment the somehow makes smith liable under the contract i thought that the successor issue was certified in part and not in part and dismissing the successor claim the problem with that analysis is that in addition to the merger aspect of the success or liability if snus was actually using the equipment  and was actually has some pursuing the the responsibility for performance under the contract then smith is in fact liable for breach of that contract for not giving the information for not rendering an account and fifty four b certification but in terms of that area we generally use the abuse of discretion standard to review correct your i believe you use the dyno of a standard of review and a reason and i don't have a case right at my fingertips but this federal court jurisdiction is not a matter of discretion federal court jurisdiction is a matter of law does it exist or doesn't exist i was part of the gen corp  acquisition case many many years ago and about saw a panel come over the the bench because of the parties trying to construct a federal court jurisdiction on an immediately appealable basis where that court much like this  court should not have done so and i'm fearful that when we go back to court we're going to try case and we're going to have an appeal no matter what we're going to appeal somebody is going to lose the  dispute about whether there was a waiver or somehow collateral stop over judicial stop based on as he sees statements made by apple he's too the a c c there's going to be a dispute about whether or not irrespective of a merger under as a matter of whether or not smith was the entity that was actually operating the equipment or whether it was  those issues are going to come back and if they don't and we find out the medic c p was using the the equipment in this court's ruling on whether there was a merger is a matter of law is irrelevant one of the factors under the curse right test is are there situations that can occur that would moot the necessity for this court to have to render this decision that it's about to render the so a major point of yours both now and in the in the briefing is that the fifty four b certification was not proper that's correct your honor if we were to decide that it is proper then the question is whether we should a perm or not could be the issues on which the district court ruled maybe that will help us also in deciding whether or not the fifty four be certification that's proper there are two issues that were certified in judge moore with your observation that perhaps here in terms of a merger and where judge smith got it wrong i respectfully suggest is that he said what my clients fail to recognize is that after the merger medic's c p became a smith company entity and not i respectfully suggest that that's just wrong as a matter of law the state of ohio is very clear as i think across the country corporate corporations are separate and distinct from the shareholders their individual entities a parent corporation is separate and distinct from its subsidiary and there was no magical way short of medics c p being merged into one of these entities at the same time which all the evidence said that it was not that there could have been a merger as a matter of law or an assignment as a matter of fact of the merger so we're proceeding from the premise that we've got separate and distinct legal entities here the only way that smith could even be using the equipment if it was would have been an assignment to that energy that happened outside the context of a legal merger and because after all we're talking about federal jurisdiction in this court i don't think a common pleas court are scuse me a trial judge or a district court judge can within his or her discretion certify a case that respect to what certification or some of the granting of summary judgment i believe to nova applies to books judge well we we know it belongs it belongs to summary judgment right but and i thought we were so you only are talking about the that it should come here that the great harm is is for all the factors in and in the case to curtis rate case for example we're going to be back here the finale but i think i think both curtis wright and lowry versus federal express which is a six circuit case both of them suggest it's an abuse of discretion standard but in any event i think we should get to the merits which is the summary judgment that was granted by the district court and i guess i'm i'm a little bit surprised i thought that the district court says that this was a merger it was not an assignment and therefore your client loses on the on that particular part of count two or claim to the complaint that's exactly would judge smith did and run or not what is he wrong that was wrong as a matter of law because you're saying there is evidence that it wasn't a merger there all the evidence is that medic c p the entity that had the contract with my car and never merged into anybody they remain a separate and distinct legal entity and therein lies the fundamental legal flaw in the analysis had smith acquired a company that was merged into it that had this contract that might have been a different question they'll have a revised code and judgments analysis might hold true but that's not the case what we have is a separate company that remained separate and distinct that could not as a matter of law have had its  assets including this contract merged into an entity with which it wasn't merged into but for an assignment not a merger another claim that summary judgment i believe the oral contract claim that's that's right your honor and that's a factual issue i respectfully submit that that should have been left to the trier of fact the judge smith concluded that th e the supposed offer and acceptance was it was too vague in the delta between the we're going to get you seven to ten million dollars which was the payout amount determined or discussed between then i suggested if we're going to look at this let's look at all the issues so we don't have piecemeal trials so that we don't have piecemeal appeals is there any case that supports that this interviewers wanted it to be this one your hon r because i think it makes sense i think but yeah i guess i don't and you know it's limited in the federal that's correct that's correct i've see if i use my time i will reserve thrust did you reserve time for me to say thank you few things i can clear up first of all judge watson did dismiss or did certify the related portions of count three of complaint which is the successor liability claim and that's on page seventeen of document three thirteen judge watson certification order of august for eighteenth of two thousand and fourteen what did that clear up it clear to work for mr schieffer argued that the success or liability claim was not certified for appeal to this court and actually it was because judge judge watson that in the case that was already decided by this court by another panel or no no it's it's the the they amended the complaint i think it's a thirty minute complaint and smith a s d inc that's the first time that smith came into this case as a party and there are only claim against smith's is successor liability for the claims against medic c p so what judge watson said was having considered the judicial administrative interest as well as the equities involved the court finds no just reason to delay an appeal from judge smith's grant of summary judgment on the n c assignment i'm sorry and i p i is breach of contract claim that's count one and breach of written contract based on the anti assigning provisions that's count two and the related portions of count three of i p i is third amended complaint so judge watson ruled that those were merely derivative of counts one counts two and they have been certified for appeal the one thing that that paragraph does and page seventeen of the order it's granting rule fifty four b s certification only part of count two the the breach of written contract claim and on the surface that seems to me to be an unwise use of fifty four b certification if the plaintiff has a broad breach of contract claim that involves say hypothetically ten different items that show a breach of contract hypothetically why should a district court certify one of those breach of contract claims for us to have to decide we could have piecemeal appeals we shouldn't really be involved with this case until the district court has finally decided the whole case that's the theory that i drafting if the various claims that are in compassed in count two would have been delineated to separate accounts however they chose to put some claims together the reason that i think judge wants and certification and the reason i think the judge smith summary judgment on the what we call the anti assignment to the breach claim are proper is because they're separate and distinct from everything else that's in to the rest of count two has to do with moving of equipment primarily has to do with the production lease one separate one single document but the finite issue the legal issue of whether or not there was an assignment and whether that assignment clause if the same class even is read the way the plaintiff reads it was breached is truly a distinct claim and the the operative there are very few operative facts it's a question of law and that's how judge smith decided it but you know whatever operative facts that might apply to the so called breach of  oral contract claim count one and the claim of the breach of the anti simon close count two were their quote unquote big money claims ten million dollars is what they claim whereas the remainder of the count two claims have a value of fifty thousand dollars and the plaintiffs also said that they will appeal either way you know at the end of the case they will appeal judge smith its most summary judgment on counts one on the oral contract and the entire assignment claim the parties were discussing settlements and i won't go into the details but we actually asked a question of judge watson to help guide the settlement discussions and that was how do we deal with can we deal with with the settlements that basically asked the court to dismiss a part and so he actually under a memorandum to to counsel that he would entertain a rule fifty four b certification because he thinks it would advance the cause of settlement whether we know if we're dealing with a ten million dollar lawsuit or a ten or a fifty thousand dollars lawsuit and under those situations i think the judge watson was correct and i think the trial judge it by the say that you can have and they can have an appeal because it will facilitate settlement so we'll get the core appeals court spending a lot of time on this case so that then the parties can go back  district court and decide how much they want to settle this for when settlements usually involve some kind of risk evaluation you know how much do you think you're going to win what's the likelihood of winning in all that stead here your i don't remember the economic that's not that's not the reason that supports a certification the reason is is that the oral contract claim and the anti simon claim have completely separate and distinct facts we're going to have to go through two trials if you know if we don't know what's going to happen with the oral contract claim because we're not to be trying they're all contra claim and we're not going to be trying the anti assignment clause breach claim in the trial the judge wesson was about to have and virtually on the eve of the trial he set a trial date for the remaining claims he decided that you know in the interest of judicial economy it's going to be a big waste of the judge's time the court's time and of course the parties time and a huge expense to try having a complete trial with many of the same witnesses most of whom come from elsewhere and and and  have the trial and just where was the machine removed and how was a move that actually could be a longer trial than the trial on the council have been on the claims that have been dismissed so if we could get to to the part of count two that your opponent spoke about he says there was no merger and therefore the summary judgment was still and we granted yes we disagree with that of course i don't i think he i think he agrees there was a merger i think what he's basically saying is that the merger was an assignment by operation of law i interpreted his comments here to be that med x was not merged into smith and i know that there are several smiths and several other things but sure i dress that manics cardiopulmonary didn't merge in anybody it's still an existing entity what happened was the parent of explained before he wrote the opinion because we have a tendency and i'm guilty of this overcomplicate things he says in march two thousand and five med vest holdings corporation a holding company that owns medics inc which in turn own manic c p the separate corporate entity that acquired the i p i business in two thousand and two merged with a subsidiary of smith medical hold company and the forced acquisition company as a result of this merger medic's e p remains a wholly owned subsidiary of minix inc which became a subsidiary of smith's hold so we have a chart in our in our brief the search this out it's a it's a diagram on page eleven and all we have here is we have two parent companies who each own subsidiaries and they decide to merge with each other smiths is the surviving company and it's now the parent of all of us of city aires to the extent that those subsidiaries remain corporations and operating companies which medics e p did that's a merger there's no evidence of that any assignment ever being executed and in fact no assignment ever was necessary because the case law we've cited and the case law the judge smith relied on shows that when you have a merger that's not an assignment it's just that everything the subsidiary owns is not our own by the parent because the parent owns the subsidiary and there was was there discovery  as to whether there were any actual signed documents oh yes there was there's been extensive discovery in this case it's it's mind boggling so the only theory that your opponents were asserting that would suggest that there was an assignment was because he the merger that occurred and the merger was layers about your particular client which is not x that's correct judge moore and that's why it's only an issue of law and that's judge smith decided that the merger is simply not an assignment and there was no sign as a matter of fact i think that's and i think it's undisputed there was no actual assignment it's just an argument that the merger was a sure sign with respect to the oral contract issue your opponent argues that it's a fact question you got to see this promise to pay between seven and ten million i guess it was we respectfully disagree we think the creation of a contract the existence of a contract is a matter of law the breach or the enforcement may be a matter of fact depending on the case  but the summary judgment order page eighty six sixty eight cites the motorist mutual insurance case which clearly shows it's a matter of law and all the judge smith did was look at the actual evidence most of which comes from the mouth of mr walter levine who was the president of the plaintiff i p i and while though he made an attempt to change it but a declaration after we found a motion for summary judgment mr levine admitted that he knew that any discussions between he and mr arena were subject to approval at a higher level that approval never came he admitted that and that alone as a matter of law shows that there never was the creation of a contract second judge smith found that you just can't have a contract creation where there's no mutuality and seven to ten is it seven million is it ten million there's a few other things that are lacking in all of the evidence that the plaintiff put forth with regard to the contract who were the parties it's not even clear from the testimony  i there's no it's not clear who the other party was on the other side of the contract as i said it's not clear what the amount was so there's so many deficiencies in this contract as it was as it was played in as they attempted to prove it that santa clause rather and the successor liability aspects of count three that are derivative of those two and we ask you to grant our motion to dismiss the appeal meaning that all of the other things hardy's who are appealing who were never parties below to the particular claims and claims that were not certified by judge watson we don't believe should be part of this appeal and we believe our motion to dismiss should be granted thank you thank you very much the the point being as is counsel has just admitted medic c p never merged into anybody medics c p remains still to this day a wholly separate and distinct legal entity if its parent company abets how you figure that it's still an independent entity it well it's legally separate and distinct but i mean a lot of companies that are wholly owned are are they still exist and they have corporate articles of incorporation and you know they have a pool they operate separately but that doesn't does that contradict i don't know idea that they were owned by someone else i think the point your honor that i'm trying to make perhaps not so well is it doesn't matter who owns them is that they are remain a standalone corporation that somebody owns their stock as a rule of the merger ok but for purposes of saying it's an assignment one of the issues there in regard to i think it's on pages thirty to thirty two there's a discussion of why i p i thought that there what must have been an assignment and in that discussion judge smith  my client suggest he saw the equipment being used by smiths and so the assumption was sense medic c p was not merged into smith's that there must have been a permission for miss to be using that equipment which is an assignment might not be in paper but as permission to use it in violation of the contract the factual question there though there in one that's going to have to be decided were garlits what happens is who was actually using that equipment was emetic c p o idea your theory is you were seeking to protect the ip i call it the science already quitman which i don't know but in any event that was that was captured in an assignment that's correct clause but what you really said was what you really now tell this court we should be enforcing an anti merger anti and simon into use anti right to my right about that and i'm no your overtime but man you mean he instantly i'm not suggesting that there was an anti merger merger prohibition  that assignment cause the point is there was no merger for that issue to even come up that's where judge smith got it wrong there was no merger of medic c p into anybody so that for the anti assignment owned by another entity the surviving parent is someone different they have a surviving parent to do and that surviving parent now own stock in medic c p that's what they received as a result of the their ownership interest in medical city they didn't receive they did not receive because of and medic c p that owns the equipment that owns that is a party to the contract was not a party to the merger the one thing that the parent company got as a result of the merger was the benefit of having stock ownership and medics e p but that doesn't mean that they've melded into one entity for purposes of a merger so you referred us to pages thirty to thirty two and judge smith's opinion what specifically has he done wrong there what he has done wrong is is that he there was testimony from my client and i think also from one of you have to forgive me i wasn't part of this growing discovery  but there was testimony that smith's was using the equipment to make product that was part of the m medics medic c p contract and judge smith concluded well that but of course they're using the equipment because after the merger they were smith entity and that's where he got it wrong because they were never merged into a smiths and totin they remain to this day a separate and distinct legal company which is  fundamental for which no one else has any rights to touch anything they even the parent it's it's that's offshoot that's why you have separate indistinctly going to d s if they're not treating the corporations as is is is is separate and distinct then there may be another problem but there's no evidence here that there was anyone acting outside the corporate scope and i could just indulge one more thing i know that i'm beyond my time  because just on this topic this particular thing of pages thirty to thirty two and jobs no with that then your honors i request that you send the case back as is to have judge watson conduct a trial so all the facts can be sorted out to answer some of these dueling issues that we've talked about in that this case can come to this court one time with all the issues framed in ready for decision i think that's what fifty four b is all about thank you thank you thank you both for your argument the case will be submitted with a clear call the next case