so i'd like to start there the trial court simply lacked specific jurisdiction over my client five relate because none or worse not enough of the suit related conduct in this case is connected to california the trial court waived that defen that he did not list the lack of personal jurisdiction in your answer you never raise the issue again until this appeal is recorded navid chance to think about it again finally on appeal we've got the issue by look at peterson versus highland music one forty fed thirteen thirteen of says if a defendant were to engage in sandbagging by raising the issue of personal jurisdiction on a motion to dismiss and then deliberately refrain from pursuing it further when his motion is denied in the hopes of receiving a favorable disposition on the merits and then raising the issue again on appeal only if he's unhappy with the district holds court ultimate decision and we would not hesitate to find the defendant had waived any right to pursue the defense thank your honor like that's exactly what happened here i disagree your honor for a couple reasons first of all peterson's why i ask you i want to know why i appreciate that peterson first holds that the this court is simply joining its sister circuits and finding that minimum requirements are twelve i don't care why we're joined here we aren't joining the ultimate holding is the one i read to you that's why i wanted you to address it your honor peterson's holding i think says that in that situation we would be stuck with whether private facia because i think that's where we have to go if you haven't waved it but i'm trying to figure out why you did waive it a number of reasons your honor first of all again i think if you if you i think you read it page thirteen eighteen or so of that decision at thirteen one thousand and thirteen one thousand it goes on to say that this court in fact looks at this court says it joins its sister circuits in saying that we've met the the minimum rule twelve requirements what peterson ultimately does hesitate to find that the defendant has waived the right to pursue the defense however it might be implemented if there are other factors militating in favor of the finding of waivers so i looked at what factors i got here one time we talked about personal jurisdiction one time we filed it we didn't even put it in our answer we didn't raise it put it in your answer i was in your spot many times and i know there's never a time when i didn't put lack of personal jurisdiction in every document i could come up with so there was no question i would preserve the issue fair enough your honor we did deny of course personal jurisdiction in our answer we may not have raised it as a specific affirmative defense but our answer does continue to deny that there is personal jurisdiction the other  say on this front is what's interesting in this case is a claim that did remain through the entire course of the case was the california wholesale retail count contractual relations act that has a jurisdictional requirement it was litigated  and the district court at that point found that the that the that particular statute she denied that claim based on the lack of personal jurisdiction there so well i think peterson allows us to go forward without a nobody did anything except make a motion to dismiss which is a prima facia case on perma on personal jurisdiction it doesn't seem to me i have any basis in this record on which to decide this except the pleadings that the plaintiff filed and the affidavits thereof and your honor we're comfortable on those grounds as well i think what you have is the complaint the answer the motion to the well the complaint the motion to dismiss and that included a number of declarations and i think if you make it i'm going to make sure i understand so it seems to me that all i've got to look at here are the pleadings the plaintiff filed and any if you will affidavits there to if any but not any as alleged by you and your briefing all i can look at is what they have in the record that was there on the motion to dismiss are you agreeing with that your honor i think that's what that's what peterson would say if you  to dismiss i mean ok i'm the old lawyer here i've done this forty eleven dimes it seems to me that the best i can do is look at what the plaintiff has provided and then if i look at what the plaintiff has provided which is our twenty three dash one of the excerpts of record submitted by tampa thirty one and the carter declaration of twenty three dash seven of the record what you find is and you find the mistake of the trial in here to which is a what i find i found an ongoing business relationship alleged i found a business relationship that would include california assets alleged i found that the defendant the you in other words your client you the plaintiff as the general sales agent which could act in california and the business that it could solicit could be solicited from anywhere including california and i found that the agreement was not limited to texas opportunities that's alleged and with says because walden just says if you have a contract and that's it that's all you've got don't do it on that but that's not what have i got alleged here i one contract i think your honor that wal defendant's suit related conduct what is it that the defendant did not with the plaintiff but with california in this form it requires two things first where what which contacts california assets this particular plane of can make contracts on your behalf your honor the suit related conduct or the suit is not about any california assets it all cleared agree it's about an agreement at least as of the time of the motion to dismiss there was a breach of contract claim as well and the allegation is that it was they were there your general sales agent it wasn't a breach of contract we've entered into a specific contract as to these particular deals it was an overarching contract that that goes beyond just the specific deal so that's the that's what underlies this not just a specific deal related to some something happening in texas your honor i think since burger king but suppose instead of making deals for fiber lights fiber connections between san francisco's hands they would none were made suppose you were just a general real estate leasing agent and and the fiber light had buildings all over the country and you were general agents and they had buildings in california wouldn't you say that you had sufficient contacts in california  following walden has both a contract in a tort element and i think because says exactly the same thing in fact that peter says is the fact that a contract in visions of one party discharging his obligations in the form state cannot standing alone justify exercise address diction and that's what the plaintiff claims as they sat in california and did some work on this contract therefore california in fact if you look at their briefing on the motion to dismiss what they say is that firelight is correct that most of the no damages arise out of work in the transactions in texas if that's because that's the suit related ryan had a specific contract with them being a california corporation only to do business in texas i think your argument would be good but that isn't what it is here this is not a contract for the california power corporation only do business with texas this is a contract general sales contract as my colleague example size where they could act in california you had assets in california that they could use in doing what they had to do and they had the general sales ability to do it it just so happens that the only reason they don't have a california transaction is you wouldn't pay you said go to court no no your honor i think i mean the honest truth is with this general sales agent agreement they could have done it anyplace and you had california assets for them to do it hypothetically your honor they could have but this is about defendant suit related conduct i think one thing that a lot of there are struggling related i think you're really trying to narrow me up to say this is only a contract about doing stuff in texas because that's the only thing that happened thus far even though the contract is really about more than texas and i had california assets to make the contract work because the only thing they've done is in texas they got to go to texas that's what you're arguing your honor i'm arguing that this lawsuit is not about calif so let me ask you this what if you had an explicit written contract that said your general sales agent and you can and we expect you to sell our our fiber throughout the country including california and then and that was that california texas any where you got it and then there was a dispute over one aspect of that which which was a deal in texas would you say there's no personal jurisdiction because the only thing at issue now is this specific deal in texas even though the contract includes california and we have stuff in california and they can and they can sell our stuff in california  the suit arises are not related to california so in your hypothetical yes i think it's about where this cases i think if you look back at bristol myers i think the court has been very clear the jurisdiction has narrowed perhaps beyond what morning it please the court frank coleman for telecom asset management mr alexander berg at counsel table who will not be arguing i was prepared to say that the personal jurisdiction issue could be resolved with one sentence that fiber light reached in to california to hire a california resident to be its wong term agent in california and the rest of the country purpose yelling itself of the privilege of doing business in california now they all of the cases that they've cited for example like pico there was a factor in fact in most of these cases there was a single factor that the court said well they they want to restriction on that single factor and in pico they said no the resident of the plaintiffs as a single factor is not enough but it didn't say it wasn't relevant and in this case we have a bunch of these factors all of which taken together in our opinion is overwhelming evidence of personal jurisdiction now with respect to the peterson waiver we note and the record shows that you are correct that there it wasn't raised ever again in fact when it was raised with this court it was the apple e who had to case if they wish to raise it again and what fiber light appeared to be doing is trying to raise it based on trial evidence and other evidence i think when that evidence appears your honor we move again because this shows there's no personal jurisdiction they certainly had opportunities throughout when the summit is why you did suggest the claim was waived you just thought that based on what i read peters would say all they waiver i looked at it i thought it was waived but you didn't say anything about it so i was going to say why did you feel like you wait so yeah you're telling me the reason you didn't waive it is because for you your argument is there now stuck with your pleadings correct all right and with with respect to the waiver and i was prepared for that because your honor i was looking for us to have said somewhere in our brief the word sandbagging yeah and waiver we did not i know you ok however given how this case unfolded with respect to the lax observation of the rules i believe that even this court to a spontaneous could say based the post trial conduct of this appeal that is the additional evidence perhaps that the peterson court didn't have to say yeah they're sandbagging we just didn't have anything other than one problem i have is at that point i'd like you to have said it not me and i would have liked to have said it to your head because you didn't say it that i'm stuck with what the alternative is so i didn't hear what you argued the alternate ok well i'm i don't believe you're stuck because preparing for this argument you know i was i was trying to determine how much do i get into the beef a bit i think the before of the argument we win i don't think we have to rely on waiver i don't think we have to rely on anything to get to it if this court gets to it either because we didn't raise it or because it doesn't find that there was a waiver overwhelming evidence of personal jurisdiction i  don't and all of the cases that were cited at best are inverse of what we have here like in the pico case if mr weston had sued pekoe in michigan i think michigan would have had jurisdiction but they were trying to bring the michigan resident that they had gone to that they had gone into michigan that they had flown twice to california at their expense that they wanted to sue him in california on that basis and this court said no that's not enough and we agree in most of these personal jurisdiction cases i believe initially the court can look at it and say yeah that doesn't sound like personal jurisdiction so what are the additional factors that the party wishes to us to consider i think in this case you can say well that looks like personal jurisdiction to me based on all these factors what can fiber light show to show so so if it's not i'm not sure to raise it but i believe in our prime the fish case we presented deals in other states that just didn't happen it turned out for example we tried to present him with a deal in florida i believe we and they were interested we tried to present present him with a deal elsewhere and they were interested where we struck paydirt was texas and nobody had ever contemplated that that was where we would strike  everything to get the three hundred thirty million dollar texas deal occurred because of the work that tim was doing in california e mails telephone calls preparing you know records so i'm asking you to help me write business just wasn't california business i know for bryson business was all over the nation business that's absolutely right and in was involved even in the texas fields so why is it those varieties and add anything more to this california contact than that well it does credentials they not only touted the california but when you put that in their assets in california they mentioned their assets elsewhere and the purpose of that was to show them that they do business in california and i believe and i'm going from memory the texas was also one of the places mentioned in that power point presentation so i think it's a stretch to say that the reference to the california assets in the meeting one sentence the so called settlement evidence which was really evidence of a continuing attempt by the parties to nail down the terms then agents agreement that was being performed by both parties both parties were doing everything necessary except agreeing on the terms of the the compensation so we that was introduced for that purpose and i believe the district judge found that it was done for that purpose regardless it wasn't mentioned and there is no evidence it was relied upon if it was in fact settlement evidence by the district court and therefore at at best it's harmless error and with respect to the last one  perhaps it was added because someone believes in the rule of threes so we have to have three issues the third issue seems to be if you boil it down is you have the district judge was wrong the district judge didn't reach the decision we wanted even though it was supported by evidence and even know what was the result of several credibility determinations this court without anything more should conclude that they're wrong i don't know that i need to say anything more about that thank you your honor one other issue with regard well it connects to waiver and the other issues you asked about the second prong of any jurisdictional test in the circuit of course is the causation test the but for causation there was never any waiver of  discussion of that and that's i think your honor part of what you were getting to your hypothetical what are the acts of fibrilation that but for those acts there would be this controversy the trucker got it wrong as simply said but for the contract that they entered into with him well that certainly can't be the case we've known that for a long time so i think when you look for look at the but for analysis in the second prong of  exactly twelve that's because the focus of this case which is the word that discord now uses an axiom and more real is texas it certainly is not in california where tam happened to be and i sure what my colleague talks about with regard to sandbagging at the appellate level we were raised on a motion to dismiss that's where the rules say you raise it we don't get an interlocutory appeal so we have our opportunity here to talk about it we are perfectly comfortable talking about it on the record at the motion to dismiss stage i think when you look at the strong declaration in the carter declaration their best shot unadorned of saying why this case belongs in california they talk about tams contacts with california they do not talk about fiber lights actions within california because there aren't any this case does not arise out of any actions that five really took here it may have taken them in georgia or delaware or texas it did not take you know you think the actions in california on behalf thank you very much for your time matters and you know we think counsel for the argument and we proceed to the last case of the day hills when versus as school to