and that would be twenty c f r six three nine point three three obviously it's our contention that it was an error but important is that correct in dismissing those alternate paths to liability based on a narrow ruling soley regarding ceefax reasonable geographic proxy now judge review very recently in twenty would respectfully went wrong was in running afoul of the recent hinds on decision when it ignored certain evidence presented by plaintiff in terms of how close via tor where there's disparate retail locations in those cases sharing of employees was not found where in a twenty year period only twenty percent of those employees  allow a continuance for more discovery whatever else what can you tell me about you need to score read complaint that you have and to what extent is that before us on appeal that is to the extent that he case not fair because it's barges it consolidated five hundred boats it aggregate them and they were operating across the ohio river which is hundreds of miles so they were definitely not always right next to each so in terms of what we're discovering we would have sought at that point it would have been about the relative locations of each and every it's difficult because they're mobile suffer a big loss and you know that upon laying off as many people no idea where to send the required notice to the local government on unit well the nice thing is the regulations tell you where to send it and it makes where do we know where there was i'm sorry i know where that was it would have been minimal and without the hour because that's where they're just regard i mean for all the operations it would be the middle well for the single side employment in the permian basin and again that might require further fineman get out of it is a beautiful non fail safe class because if you organize it based on an issue of geographical proximity which goes directly to the heart of a single sided going on that issue itself is solely dispositive of every claim and every theory asserted which parent that equally it's interesting to know  and this is included in our brain so i won't i won't harp on it but you'll notice that the plaintiff's theory in this case continues to be a moving target they originally filed the complaint alleging that the central location of the single site was tells the headquarters of watch while they correctly moved on from that theory and filed the person in the complying in which they are now trying to suggest that the single sided appointment emanates from an counseled still avoided the question is this what is the single side of employment with respect to number one mr meadows the one plaintiff in this case number two you can't lose sight of the fact that this case was filed as a punitive class action so if it proceeds do you define the single sided employment as every single drilling rig aggregated together because if you follow the logic for one for m to abide by that logic would essentially eviscerate the meaning of the warning and would undermine the very purpose of the department of labor's regulations a specific we say they've identified single side of employment and they give kind minds on h courts are to analyze this issue and the overriding principle and the and that regulation is the basis sumption that multiple sites are not to be considered unless they meet three criteria or not  ignore which is while these individuals are assigned to their particular rig at the whim of the operator of the customer that is their work site mr meadows there is no testimony from mr meadows or anyone for that matter that they can use on a daily basis from home to the work site these rigs are not they're huge they're they're basically factories that manufacture a holes in the ground they have living quarters the workers that work on the bus salespeople go out and go out they leave their home for a week or two to yes your honor erica but what they do not do is essentially move in or move to a particular location and reside there until the work is completed well some of them i mean some of them yes but do they do it for six months or do they do for a year because that's one of the key points which is the rig operations vary from rig to rig you could have a rig that's constructed into this is it worth their time in your town when there isn't time when you're on i think at that point you're sort of getting into a great area if you know if you're going to say a rig is constructed and operates for two months then we're going to for these rigs and when these individuals are assigned to a specific rig they that is their place of employment they report to a originated you who is essentially the mayor of that rig who controls who supervises who does everything according to procedure in according to the client customer contract at that work site we're not talking about mr meadows for example i tried to find this in the record it doesn't exist mr meadows testified that i think the best testimony you can provide and this is an operator for saw apologize we don't have the record citation but the best evidence he could provide was that there may have been one instance that he quote unquote heard about where the actual dr inside was close enough for a nother employee to drive from his home to work side and back home and that's it that's the only testimony you would have which could potentially create a fact issue based on an this correct and what they say what they've argued is there's a possibility of case i beg to differ there is a saturation over the last six or seven months in this circuit you first have the access case which may then you have the patterson u t i case another case which they don't even address in this case or not and there's an interesting point the flows from the paterson that i'll get to in a second but you have a parish a case decided out of the southern district by by j i case a case which judge ellison out of the southern district ruled in favor of the driller and said that you can't there is not enough evidence in the record and it is impossible for a reasonable juror to find that there is a single sided point if you will the judge actually will add the oral argument which was conducted in august of two thousand two thousand sixteen last summer and what's telling is counsel to counsel in that case happens to be counsel in this case and there is a fatal fatal ignition made of that oral argument and the courts consider this because this is actually on appeal so that the appeal is for this very court and its docket number sixteen two zero six zero four mr bartlett counsel for latch on in this case was asked in that case about the geographical wish very telling is his response to that question he says your honor i think of the cases that we and this is a page thirty five twenty six of that record on appeal and that docket number your honor i think of the cases that we have this might be one of the strongest ones from patterson case as far as that management supply chain hiring and firing apparel and a steep narrow error area as compared to actual which was completely different he goes on to say everything was in oklahoma and yet rigs operated in arkansas new mexico texas most important quote we didn't have the facts in that case that we fortunately have in this case that would enable the fact finder to aggregate drilling rigs in each distinct employment is not only for mr meadows but for the class if you take the argument for class purposes because i think she referred to it as a failsafe class if you take the argument that you just aggregate them all together it completely completely excises the language from the regulation adopted by a promulgated and published by the department of labor which says first there's the assumption that multiple sides are separate sides in a point unless you need this regard t they've they've analyzed almost identical facts and have determined that there is no reasonable trier of fact that can draw conclusion that there is a an operable single sided employment that controls one of the focuses that meadows makes in their argument is that because i want to address a couple of specific points i don't want to leave them unanswered is there was a suggestion we're asking the court to basically decide something here that that fitzwater been decide that's not quite correct what we're asking what we're telling the court here is there was evidence in the record to support injury of the fully dispositive summary judgment at fitzwater absolutely got the logic correct so it's not as if we're asking the court to all of a sudden consider some new argument or new evidence these arguments were placed before judge it's water and all they had to do was get to the first one say geographical at tulsa yeah i'm going from memory i want to say that there are approximately twenty twenty five corporate employees tolls is basically a corporate headquarters or fifty or the i'm sorry there were fifty or there were discovery issue and whether or not there was error by the court not allowing so let me clarify exactly what happened the summary judgment motion was filed we filed my client follow the motion for summary judgment opposing counsel the one who made the fatal concession in the patterson case three months after this case was decided by judge fitzwater asked for discovery extension granted we gave that we granted him scary extension they elected not to allowed to complete discovery they offered their own motion for summary judgment you can't have your cake and eat it too you can't make an argument based on the record evidence and say your honor you need to rule in our favor on this cross motion for summary judgment and then when you lose climb well this is unfair we didn't have full discovery they had full discovery they had the opportunity for additional discovery they didn't take it and then they accepted the circumstances and the fact that the facts and the evidence that had been gathered through discovery purpose behind the warren act is what controls here it's misconstrued what we're arguing is the legislative purpose behind war and when it was it when it was an act in one nine hundred eighty eight by the way in the reagan administration eighty years into this drilling industry when it was an act that there was they had an opportunity at that time congress did to correct amend discuss debate go to a committee go back out of committee and submit a new bill which would specifically address this particular industry the department of labor and i don't think this is controversial to say this but all things being equal at least from my perspective as a defense attorney there is a general perception that part of labor regulations tend to be all things equal a little probe boy brought into the labor actually has published a rule assumption that says we ought to assume barring evidence to the contrary that separate sites constitute separate places of employment unless you can meet this required tyria which they don't do in this instance meadows in rebuttal but the question is out there in my mind it hasn't been answered and that is how do you define the single sided point how do you define it for mehta's and how do you define it for the class regulations not only with respect to meadows but also with respect to class members and the only way to do that is to stretch the logic and say we're going to tie rig six and rig seven together because mr meadows was assigned here and at one point was assigned there how do you do that for every class member you can't unless you pull them all together and if you do that which doing is you're basically setting up a situation we're a retailer a large retailer retailer wal mart has locations in seattle and miami and austin and in albuquerque if you have a a regional vice president the might supervise three of those locations that's what they're trying to get to the superintendent issues right harry because that doesn't mean that each of those locations constitutes a single sided employment there is no and i believe the stitch southwick that raise this issue of cross fertilization there is an across realization i beg meadows to offer any record evidence on appeal that establishes that employees worked two sites at the same time the reason they work multiple sites is by its very nature a drilling rig doesn't last forever right they operate at the whim and at the discretion of the customer the operator that might be a couple of months it might be a year when that rig is deconstructed stacked then go on and they'd have a contract with another country or new they manage that particular rig with a work force they don't work then they're not borrowed from one rig to another while they are side the only reason not that there was evidence that they it is there is some evidence in the record that suggests that mr meadows was transferred and he was transferred if you look at the record evidence at the request of the customer the operator i'm sorry at the request of well yes of the customer because it was the company man who was on the side of the drilling rig you said we don't want this individual on here in move to a new location it's a big one of an individual moving from a wal mart store in austin and then transferred up to seattle yes they work in both locations but not at the same time i see my time is up it's pretty plain on the record and that other point that it came up was regarding some sort of fatal admission major oral arguments you know in the patterson case and there were different facts in patterson case one of the things was in patterson everyone had written designation on their payroll on their plates lack of unified payroll which is actually usually indicative of a single side of work sites different retail sides they would be paid very carefully out of that other work sites and their accounting there is no evidence of that in this case and and then one of the things he said was that these employees who got there for six months or a year they were never driving back and forth from the site that they went to say for two weeks and then they would come back so they were trying to from something and the last thing they keep harping on no one ever worked at two sides of the same time well that kind of just sounds to me like a physical impossibility how could you work on one drilling rig and another contemporaneously it it's impossible they're different physical size and that's not what the more active fires require shifty requires employees moving from side to side which definitely in this case and regarding singleton of employment it's very common to characterization that you got an extension for discovery and had opportunities and whatever discovery wanted to take if you were able to take why was it all premature