lawsuit was getting out and so it's not a stranger to the entity that is that is there is involved in the situation but i think the primary argument is you know there's rules in place that allow eighteen defendants to bring in the real party interest joins the different parties and to you know proceed accordingly will you say to bring in the real party in interest i mean suppose that you have a partnership like this and maybe it's three partners and two of the partners opposed bringing a lawsuit as the other partner did in this case and the remaining partner wants to bring the last soon and he actually does the i know this is crazy but he ties up the other partners and puts them in the basement and goes forward with the lawsuit i mean ken is there any way to challenge the authority of the partnerships and i don't see those other rules as being a way to challenge the authority of the partnership to perce contract law you have the parties to the agreement the parties to the partnership agreement have the rights and obligations with respect to each other so if if someone if someone is tied up in the basement then i guess they can't intervene in the lawsuit but  other side sought to challenge the authority of the of the partnership to bring suit and judge quote said it can't do that there's no standing to challenge the authority because that's an interna where a group partner who is objecting one of the two lane ironic or his or her own reasons decides to change make a change of mind and here you can see where it's it happened  they're withdrawing part never properly objected to the lawsuit he never intervening he never filed a motion made in the actions in the hawaii lawsuit to try to stave off the federal lawsuit but that i think is irrelevant now because he has withdrawn and i think what judge lou did crafting that settlement really addresses the concerns that the court had district court had a concern that the partnerships speak with quote one authoritative voice and judge losing who i really solve that issue by withdrew so so he was there was two original partners to the partnership it was two or three and tom sydell withdrew from the partnership and she obtained the patent so that the partnership had some property including a very straight marks tom sydell owns the patents and the lawsuit then belongs to the partnership so he left the partnership so the he did not come back into the partnership as a result  a single individual but he had withdrawn he has withdrawn and he has no ability to veto or to control the lawsuit in any way so ts he truly acts w just ok so the reason why this doesn't come up very often is that at equity this had to be but in the complaint while nine is a replacement for that equity role and what it says is this often won't be an issue and if it's not an issue then fine it doesn't need to be pled in the complaint it is an issue the rule that any party any strange or any plaintiff any defendant can really came in and filed the students you know to his name just the way i could come in and file the suit in the name of a t n t and the point of role nine is that the defendant and the court need to be able to consider whether the person who purports to be the party actually is the party and that's why will nine exists you have to be able at the outset of the litigation to determine whether the suit was properly filed let me ask you this question are you saying for example in this home and that in any  wells can we have on whether that ship should or shouldn't be allowed when it be raised in every case as to whether let's say the c e o properly approved it or whether it should have been approved by a vote of the shareholders or whether all the partners some greed by a super majority i mean why would this be raised every time because often so that that brings me to my nd answer to judge press on the question the reason why this wouldn't come up all the time and why you don't have a slippery slope problem is i partnership that's the background role of partnerships it happens that these two partners decided to do something very unusual and adopt a partnership agreement that required both of them to agree to file any lawsuit so any lawsuits filed without the agreement of both partners was was authorized and filed without capacity what the district court is saying here is that the defendants have to be able to challenge that in order to avoid wasting everybody's time ok well you know unusual that the defendant w have a good faith basis for bringing that type of challenge but in the rare case where there is such a good faith basis and here there was and here the defendants were able to prove that the lawsuit was unauthorized to the point where plaintiff doesn't even argue anymore that the lawsuit was properly authorized in that situation you have to be able to bring the challenge it cannot be that you have to go all the way to the end of the litigation and then let the other partner come in and challenge the outcome on the ground that the lawsuit was not  isn't going to happen and can happen so why this is at the end of that because you're looking at this ex ante what the plaintiff is asking for here is a legal rule that an outsider can never invoke rule nine to challenge authority or capacity of an entity if it looks from the caption like this it was properly filed and that cannot be the rule that is not the purpose of rule in mind at common law anybody could bring a challenge like this we cited in our brief case where a why there clearly is the ability of an outsider to bring this challenge is the rule clearly allows an outsider to come in and challenge the authority of a trustee to file suit in the name of the trust right if you can file suit in the name of the trust and somebody and then outsider can come in and challenge that why can't you come in and challenge the authority of a partner to file on behalf of a partnership the same fiduciary relationship the trustee is the petitioner ration trust rule it says that opposing party any opposing party doesn't say insiders doesn't say outsiders any party can challenge a party's already to sue or be sued in a representative capacity so what  says a party is someone who controls a lawsuit and has an interest in the outcome like a great here and i'm sure party section four says that term parties include all who are directly interested in the subject matter of the suit saying that this makes mr a party for all purposes in every rule under the federal as it's a procedure that uses the word party this is really important he's a party for purposes of rule nine to determine whether this lawsuit was properly of the as to the parties to the action so what they said and eisenstein eisenstein was a false claim fact case and the government was named as a party in the litigation but didn't exercise its right to intervene and the question was whether the parties got the longer time to appeal under rule for because the government was a party and the supreme court said no the government's in the caption but it didn't intervene it didn't play a serious role here and so therefore the government is not a party for purposes of rule four but the court specifically said it could be a party for other purposes it dropped a footnote and said if the government doesn't intervene in this type of case it could be a party for other purposes like if the case is dismissed over it objection it could appeal so party means different things in different contexts and what we're saying is that in the narrow context of a rule for a great it's a party because you had a direct interest in the outcome and he was controlling the because the rule for purposes of rule nine yes but not for other purposes so the plaintiff is trying to say that if we're right then for example a judgment could be enforced against a party who is running litigation on behalf of of of of a partnership we're not saying that what we're saying is that for the purposes of which is this very broad and general rule that gives any party a right to come in and challenge authority or capacity at the outset of  and make something really clear one is the threshold question here as the quite laid out in its order last time is whether judge alfred can properly address the question of authority or capacity either because we can properly raise it under rule nine or because he has the inherent power to do so plaintiff concedes that in the situation where the partners are tied up in the basement it's a capacity issue but on his theory if the remaining partner files the suit in the name of the partnership nobody can look at whether that's a capacity and the problem with the plaintiff's reading of rule nine is that nobody can inquire into capacity or authority if the suit if the name in the caption appears to be a proper name and if that were the rule exercising power on behalf of a represent a represented entity here to grow with and exercising power on behalf of the r t c without sidled consent just as the defendants in the surat show argued that authority to operate in the partnership which seems like an appropriate thing to do because it is part of the transaction in the lawsuit but that's a different situation than when somebody who has nothing to do with orders may i respond when i say i'm out of time but but the problem with that is that that wasn't the basis for the court's holding what the court said that the defendants could raise this challenge of th hasn't addressed at all is the fact that any ratification even if it was valid came after the statute of limitations and was therefore to be the litigation gimmick rationale that serves as the basis for judge alsip ruling the st time around really wasn't the basis here the basis for his ruling here was primarily that the attempt to ratify came too late that it was after the statute of limitations had elapsed and at that point the suit could not be revised  of california law that's also what apply to and by this court in the wrap in case that where there is a problem of capacity or authority you can go back and fix that after the statute of limitations has elapsed because the statute of limitations i was concerned if we went in this direction we might have to certify in the spring court in california something i would prefer not to do especially nervous crowd it is real or no with our challenges but file their annual required run do you have any crazy cases which makes this completely settled in the california law which i assume applies in this particular issue it does apply to this issue your honor and we've said it a host of cases in our brief that are outside of the i don't know where i don't want to host i want you to give me what is this the strongest case this is not one of those where they did not annual fee it's been applied to the failure to file paperwork with the state in the lease quit the case it was applied in the in the american alternative case american alternative energy the court said that it applied in general whenever a case whenever a company doesn't have the capacity the friends of shingle case involved the failure to file a statement of information with the case and in this court's decision in wrath and it was a trust case that had absolutely nothing to do with corporations or taxes and the court said that a failure of authority on the part of a trustee could be remedied only until the statute of limitations expired so this is the settled question of california law and plaintiff has never  in the genuflect case the corporation suggested that it would be a plot that this rule would be applied in a situation where the company was controlled by rogue executives that ultimately found that the company was not controlled by rolling rogue executives but cited these cases for the proposition that it is a settled rule that the statute of limitations is not told when a company like standing to sue because its powers are suspended by the state and that was not  d correct that's genya tech business solutions versus was a court the court ultimately found that the company was not incapacitated and finally in in the american alternative energy case the court said that because the company did have capacity as a general partnership that was why the statute of limitations was told the corporation strongly suggesting that the verse was also true that if the company didn't have that if the partnership didn't have capacity then the statute of limitations would not  on the situation and today t r t has full authority because they are the one remaining partner who has authority and he submitted a declaration i believe that he a par seventy eight in the record which provides full authority tirupati and capacity cannot really challenge because it's a partnership there's no there's no there's no dispute there is no legal entity so moving off of the statute of limitations and then judge was this question was was exactly on point and i believe california out to the extent we understand it is settled in the way that the levels once you file a complaint and the cow on the are you told the statute of limitations now even if it's a defective complaint the the the statute is still called there is one exception to