good morning everyone this is judge nardini and i am joined here on the bench today virtually budges walker and reggie thank you all for being with us on this very snowy day i hope that you're all safe and warm inside somewhere and you're not trying to assume from outdoors we're sorry that you can't be with you live at our courthouse in new york hopefully will be returning there soon enough  in the meantime i'm grateful for your patience as we connect with each other virtually a couple words about technical issues if for some reason your connection fails orde there is some technical glitch please don't panic  if you get off the call just try to log back on our courtroom deputy is stands at the ready to help you we will pause and wait for you to come back if there's a lengthy delay we will simply put your case on pause move to the next case in the calendar and when you're back in connected we will resume your case wherever we left off and have no fear we will reset the clock so you will not lose any time but we do have some technical issues from time to time so certainly we won't hold that against you and if we fall off we hope you don't hold that against us the way we  will proceed today is that we will call the cases in order at the outset we will give the litigant two minutes of uninterrupted time after which we will proceed with open  questioning i will be inviting the other judges to just jump in with questions after that two minutes is up you should see your clock in the corner of your with the minutes ticking down and as i call your case i'm just going to be confirming how much time you have asked if you're the appellant to reserve for rebuttal you don't have a warning light so if you can see that little clock i would encourage you to have some sort of egg timer or some other time or they're just to monitor what time you so why don't we proceed i understand from mr white that everyone has logged in so i won't call the whole calendar yes yes ok let's see it so mr look cool it looks like you will have eight minutes to begin and you've reserved two minutes for rebuttal is that right that's correct ok so why don't we kick it off there with mr look cool go ahead good morning your honour's my name is valley look cool i represent the plaintiff appellant mr know the district court here erred in both compelling arbitration and denying sister knows motion to vacate that arbitration a war with respect to the st issue the threshold issue of compelling arbitration new york law is clear that an agreement to arbitrate must be clear explicit and unequivocal if it requires implication or subtlety there is no agreement to arbitrate and the new york court of appeals is equally clear that a handbook with that a disclaimer a no contract disclaimer within a handbook is dispositive holding that there is no contractual intent in this particular case there was a handbook that repeatedly say it is not a contract it represents guidelines and general reference guide only new york law makes clear that this is dispositive here there can be no express or implied contract as a result and as a new york court of a this prevents the creation of a contract that disclaimer cannot be overcome by implication or implied in fact contract in fact the text of the operative documents makes that clear mr no signed an acknowledgement form in connection with the handbook that acknowledgement form which is on page one hundred and fourteen states this handbook is not a contract of employment express or implied that means that you cannot have a contract by looking to the layout of the document to see if there are sections that are distinct by looking to the mandatory nature of its language or by conduct more importantly perhaps the disclaimer of no express contract means that mr no could not sign pages of that document saying i agree that this is a contract neither one of you know there's a cruel mr look cool on that last point you said he couldn't sign pages that say it's a contract i'm looking at page sixty one of the joint appendix which appears to be  when it independently says i agreed to the terms of the arbitration agreement so we have a very different situation here the arbitration agreement was a standalone document and he agreed to it effected his cross referenced in the handbook doesn't seem to be something that could make it less binding well it's not just that it's cross reference iran or it's literally signing pages of the document of the arbitration agreement the only place the arbitration agreement lives is on pages twenty eight to thirty two of the handbook and if you look at page one hundred and fourteen which is the acknowledgment form that's the acknowledgement form that mr no signed in connection with page one hundred and sixty one that is the language that is neither expressed nor implied contract but perhaps more importantly your honor this situation is undoubtedly messy we have interlocking documents two of which are signed that appear to point in different directions a handbook that says it's not a contract a a signature that says i agree to the arbitration agreement and a separate acknowledgement that says this is not a contract in that suit i'm sorry judge reggie or muted two thousand i hear and he states that you greece can resolve any claim arising from its employment by arbitration why isn't that also reflective of  not because of the subsequent disclaimers in the handbook because the only place that the terms of arbitration are set forth is in the terms of the handbook so pages twenty eight to thirty two  are the sort of the logistics of arbitration so to speak and so you need to combine those two so again you have something that indicates that it could be a contract and something that indicates that it is progressive discipline policy in the handbook if you nischelle those pages would that mean that that's a contract i think new york law would say that it is not a contract and again agreed we have different permutations here but the clarity with which oppenheimer must prove that it's a contract requires there to be no implication we would have to read out the disclaimer that says that the handbook is neither an express nor implied contract it order to convert these pages into a contract in other words as i understand oppenheimer's position this is an expressed contract because pages twenty eight to thirty two are signed with a disclaimer says you cannot have an express contract so we have two things going on at the same time a document that purports to be a contract and not a contract at the same time and under well settled new york law that means we defer to the no contract rule and so i will appellate argument fails for two reasons st the argument ignores the fact that the appellant who holds a law degree and a certification in european arbitration as the court has noted agreed three times in writing to arbitrate his disputes with oppenheimer he did so within his offer letter he did so within a separate document titled arbitration agreement that he signed the day he started working for oppenheimer and he did so a rd time in november of two thousand fourteen when you electronically affirmed st having received two thousand and fourteen handbook and then as judgment even pointed out separately affirming yes i agree to the terms of the a three agreements are separate they're distinct and by their terms are entirely mandatory and the appellant here has been unable to cling to a single authority in this circuit were court has refused to enforce a separate distinct dettori arbitration agreement simply because in a company employee handbook provides that that particular policy does not create a contract of employment and as the just record noted the law basco case and the other authority cited sue by view of how and is fundamentally different because there was no separate distinct agreement to arbitrate and it's also important to note your honour's that both versions of the employee handbook that mr know points to provide very clearly that the terms of the handbook do not affect any separate written agreements between the employee and oppenheimer and that if there were any conflicts between a separate agreement and the handbook that the terms of the written agreement would apply well finally on this issue your honor even if this case were in line with the authority cited to by mr know where you were dealing with a separate distinct arbitration agreement but rather a majority tracing clause that was buried within the terms of an employee handbook his argument still fails and that's because just records in the circuit have held that even under those circumstances where you have an employee in a book with limiting language if there's an arbitration clause that makes clause and in fact further down says in consideration of my employment or continued employment i agree to arbitrate there is no such limiting language in any of those agreements as such a believe the district court got it right that the court was proper and compelling arbitration and unless the panel has any questions for me i will move on to the order denying motion to vacate and to that end it's well settled that a party must meet a very h order to motion to vacate an arbitration award on the grounds of manifest disregard and as this court held it to furcal steel that burden is only met in exceedingly rare instances where some agreed just impropriety on the part of the arbitrator is apparent and i also respectfully submit that it's not enough for the court to disagree with the holding of the arbitrator rather as just court held in teco medals the award must be enforced quote if there is a barely colorable justification for the outcome reached and here your honor is not only to the arbitrator a retired united states magistrate judge have a colorable justification for his finding which dismissed mr miller's claims he had a robust factual record supporting his findings and as the district court held mr nose motion to vacate the word is in fact impermissible challenge to those factual findings and most importantly the factual finding that mr know had his supervisory responsibilities removed on july th two thousand fourteen which was before he ever went on an f m illegally of absence and was before he ever indicated that he wished to take in f m l a leave of absence the evidence reflected that oppenheimer on multiple occasions made  mr no aware of what his rights were in so far as taking up to twelve weeks of unpaid f m elihu for the birth of his child and there was evidence including the testimony of mr newell supervisor in two of his coworkers which was credited by the arbitrator in his award that mr no elected not taken f n l a leave for the birth of his child and instead desire to work for mostly him to continue to get paid which he in fact did and so can i just as you to clarify  you've said a number of times that he didn't to go on definitely leave is it your position that he asked to go on some other form of leave or is it if you're saying that he just was working remotely and wasn't going to suggesting that he asked to go in a different form of leave no he got all the drama ok so when you keep saying f m l a leave i keep wondering whether you're trying to make a distinction between yes he wanted to go on a leave but it wasn't technically the kind of leave that falls under the f n l a and again i thought your argument was he didn't ask to go and leave it all he just asked to work from san francisco that's exactly right if i  july two thousand and fourteen e mail neither of whom was authorized to approve or disapprove even if they could constitute a request both testified that they understood that that e mail to be missed you only in august two thousand in fact mr no was making the same one hundred and fifty thousand dollars base salary when he was terminated by oppenheimer year and a half later in june of two thousand and sixteen that he was making the da that he went to california in june of two thousand and fourteen for the birth of his child the only reduction in compensation that mr no incurred was reduction into discretionary production based bonuses and you will discretionary production based bonuses which the arbitrator relied on well settled law that an employer isn't title to take into account time out of the office including time out on a family leave when awarding discretionary production based bonuses and then finally the award there is a factual basis for the for the findings that that a year and a half after his f m r lately if mr no was terminated by oppenheimer and he was terminated at a time when oppenheimer had just suffer never hired any research analyst to replace coverage for those sectors and for those reasons i respectfully submit that the opponent is not come close to establishing that this award qualifies as one of the exceedingly where rare challenging the arbitrator's findings of fact even though we may disagree with and we had challenging the standard used by the arbitrator to determine when f m l a protections kick in the arbitrator repeatedly looked for mr know to either request or be placed on leave before the before he found that she the f m elaine protections kick in in fact this court has made clear that the protections of the f m l a kick in when mr know stated that he had just that his daughter had been was two weeks ult that she had a health condition that prevented her from traveling and that he would quote be back in the office by august th you don't need to be clairvoyant to say just to think that the f m l a may apply here and it is undeniable that mr lowe and all then demoted mr know because of the actual life thirteen e mail in fact only a few days later he sent mr no f m l a papers and it minutes that the reason for stripping mr know of his responsibilities which the arbitrator found was in fact an adverse that period of time but by that point he is demoted isn't consistent because once he sends a july th email the adverse action is stripping him of his supervisory responsibilities that completes the violation because it's i'm not arguing that i apologize what i'm arguing is that mr lowenthal was prohibited from taking an adverse action in response to the july th e mail it matters not to mr know continued working what matters is that he gave mr lowenthal sufficient information to let mr low and all know that leave may apply and response to that notification mr low and all took an adverse action which is  advisement thank you so let's turn to the next case on the calendar which i believe is united states versus cooney and do we have  video not yet we'll wait for you to get on video and trying to the game clock is paused while you're getting your video don't worry i'm not sure why  we could do that i'm fine what we perceive that way i think that we'll be able to work just fine we often do this by telephone conference call and i think we have no problem understanding arguments so can you see they can you  jason the loss and it seems to me that he was exactly he joined us just this conspiracy late in the process he was there from the beginning and therefore it seems to me that on the whole restitution of the forty three m talking about they were they were talking about discretionary liquidity one hundred trail excess money and then the he made to make a comment about you know the west coast charging down the field when you should take the take the bo and that is that the or the case of this archer depended on circumstantial evidence primarily and he wasn't involved at all the conversation with jason the lalas but you're not arguing here anywhere that there was  insufficient evidence against community here you're just arguing that we'll accept all the evidence against tony but somehow he's not responsible for restitution and i just don't follow you know i mean i just i do fall apart of it obviously the government concede in the end she concluded that to gather the evidence was sufficient to demonstrate your client's ability to for c b s losses so i'm not sure why we would play evidenced piece by piece as opposed to review the district court's ultimate conclusion so what i think what i'm asking the court to do respect way is that the court judge abrams specifically  those three categories are not this was all other act evidence this was for or be evidence that was was admitted and none of these acts which connect to mr cooney are connected to the victims in this case the involved onscreen for he was not there was clear evidence that he had nothing to do with the the victims he never met the victims never he had no court possession he was a passive investor and if you if you simply isolate and act no causal connection between his conduct and the loss that erd by the victims for example the fact that he lied to his bank to get a loan in thank you very much let's hear from the government ma'am please support my name is nick r k k and i'm an assistant united states attorney here in the southern district of new york i represent the united states on this appeal and i also represented use and to help build a financial services conglomerate that they would control and that they hoped to sell for profit nd he victimized ten pension funds all of which were clients of asset managers that  conspiracy to commit securities fraud and securities fraud who need to not challenge that conviction here at sentencing after having presided over the trial having made specific post trial findings that cooney was a willful participant in the scheme having reviewed a pre sentence investigation report and victim impact statements and having made specific findings with respect to the loss amount and number of victims at a forty sentencing proceeding the district court was well within her discretion to hold that cooney or the reasonably foreseeable acts of his coconspirators victimized want pommy and ten pension funds and was well within her discretion to hold him liable for restitution to all the victims at the district court held interest trial rulings and at sentencing quote ample evidence and demonstrated that cooney was a willful participant in scheme that evidence including what judge walker has already outlined this morning included the following counties receipt of five million dollars in misappropriated bond percy's that had been taken from investment advisor clients the pension fund victims in this case which could be used to purchase five million dollars worth of additional was on the bond making up on the bilbies that there was in fact a market for the sale of these bonds when there conceal his receipt and misuse of bond proceeds funneled through the fake annuity provider account in a holding company liable for restitution to the pension fund victims the district court specifically help that the government had the concession in your brief regarding what you recommend to be the adjustment that we should make to the restitution order with respect to the walk coming ye specific amount at sentencing in in preparing our brief and reviewing the victim impact statement provided by law cami as well as reviewing the restitution orders already entered against  d we realize that a portion of the what tommy victim impact statement included bond that were expectation damages in other words not money that what tommy had incurred losses already in connection to the s technical procedural question your brief suggested we exercise our authority to modify the restitution judgment ourselves is there some crissy drill of a teacher disadvantage who are doing it ourselves as opposed to vacating the restitution order in that limited regard and directing that the district court enter a modified judgment upon the record  just the case that cited in our brief at this court simply modified the award to reduce it to the amount that that that the defendant had pointed out to him to you planning to do with all of the other co defendants who judgments i presume have become final and i don't know that there are people spending in those other ones so but i assume that this is an issue that would apply across the board to all the defendants and maybe some of them are a lot maybe they're your judgment your final and maybe it's a moot point you know given that it's dollar amounts involved restitution but i worry that if you know some of these defendants are paying installment payments over time and the clerk's office is called upon to distribute them pro rata that the caret of payments  objection through whatever mechanisms are available to that defendant currently we will we will handle it at that point i'll note for the court that some of the defendants in particular jason golan is who restitution or i was st ordered in this case and ordered again when he was recent and did not object to the amount that the law pani had stated in their victim impact statements nor did other of the defendants in this case including says up next before the court however and i also know that as a practical matter oftentimes defendants say when they are able to pay back restitution and in this case that's not clear that any of the defendants will be able to to your point that it may be moot or academic when they are able to pay back restitution the government sometimes settles with those defendants for a particular amount that is then distributed to the victims and so while there is no ready mechanism necessarily available in each case we will certainly hear each defendant to the extent that they raise objections or that they want to raise the issue with the government and work to ameliorate any issues not being raised by the defense in in cooney i'm wondering whether the government is taking the same approach and john the last considering it wasn't raised there either but here we are in appeal your honor we are in fact we reach of the surrounding evidence would have given them reason to know that that this was a criminal object just and that there was that this was clearly a bomb there were there were a lawyers bond w testified that that many of the actions which from an exciting two were found to be innocuous they were found to be not criminal conduct so i encourage your honor review the three categories of evidence cuny has bars the victims and his conduct i submit that it doesn't meet this threshold and i kroeger encourage your honour's to focus on the record and the fact that the district court was very decided and was was you know he purchased those bonds knowing that they were they were still it was still part of and it wasn't it wasn't going back into the into the into the it was in benefiting the what pommy in any way and and so d it's and the jury found all of this you know it's so it's it's hard to ringback you know you're you're you're sort of cherry picking little pieces of evidence and asking us to look at those when in fact there was an overall scheme and the jury reached a verdict on on on your guilty why respectfully the there was testimony throughout the trial that he not only that now that jason go on us had misappropriated the money that he stole to such an extent that no one had to due to what he was doing the only people who were able to see that were much later are they cooperate or admitted that they were able to say that he had done that but clearly devon archer judge abrams relied upon is not sufficient to show a possible connection between his acts and the last of the victims and what i'm asking for your honour's this is really just superman th much counsel we appreciate both of your arguments we will take that under advisement and we will turn to the next case on the docket which is a related one docket numbers one thousand bash six  as for the correct pronunciation of your name here nobody gets it right you have your cab or well mr tauber thank you very much and we can see you perfectly so if you can see and hear us i understand that you have reserved one minute for  person in this case and at that point didn't you open the door because his eye would understand it every person in the case means every person in the case and you didn't go back and say ladies and gentlemen i don't actually mean that i mean only a subset of each and every person in the case you said each and every person and then you illustrated with some people so why should each and every person didn't the judge rationally wasn't she rationally able to say you just included your client i really believe not because i've been listed all the people but he let me ask you what reason would you have to argue that he what they showed me in that by reading gary hurst involved in that conviction was a false relation to gary person john has it's accepted by everybody that gary hurst never met john landis never knew him never operated with him never spoke with him and mish shows a false relationship between there was two people that didn't exist at all and i think that's admitted by all parties but the problem is that it's a it's not a direct  there be no direct were period as you have minute of a conviction itself and now you're suggesting that the court should have abused her discretion and not allowing these other witnesses and having another mini trial going back to the evidence which we was highly prejudicial obviously it is d i don't think anybody can argue to prejudicial that the prior conviction with the people who were charged with doing a crime had questions or is it unfairly pandering well it's court and they represented the government in the district court below the district court in this case did not abuse its considerable discretion in her could in cross examination about payday lending in admitting highly probative evidence of the defendant's prior conviction and it precluded ing the defendant from calling additional witnesses and serve the district courts below guideline sentence which it took into account the defendant's age h and the sentences imposed on the co defendants was both procedurally and substantively reasonable and the district court's denial of the defendant's time barred and meritless motion for accuser was similarly correct let me spend my time addressing the two arguments that counsel talked about just now st i think it's worth noting that before addressing whether or not the argument in summation violated the district court's explicit rolling that the district court's ruling itself was really unduly narrow because any argument that the defendant laps knowledge or intent not constrained only to being duped by jason glonass triggered the four hundred and four b and would have made  it miscible because under this circuit's precedent that is taken off the table a defendant can foreclose relevant for a for b only by explicitly disavowing any argument with respect to knowledge and intent that's this court's decision and bow tista and so that evidence was admissible even before summation in this case but but as i think all members of the panel have acknowledged even if you limit the consideration to the district court's argument the district's ruling there is relevance of an argument that jason go on to could fool anyone was the implication that he also dad fooled his father so there's no question that the door was opened by that argument and the district court did not abuse its discretion in allowing the government to then put in the four a four b that made it very clear why it was not reasonable for john glonass to have trusted or lied on his son and i think with respect to the implication that that was somehow misleading to the jury because it you know unfairly or inapt your only link to mr hurst mr john go on is that simply unsupported by the record mr hurst was a defendant both in the underlying drove a case and in the wacom the case it is true mr hurst pled shortly before trial and walk calmly and so when briefing this before trial the government contemplate it quoting in evidence that all three have been convicted in droves but  simply no no argument that there were some unfair prejudiced by linking john doe honest to hearst that just didn't happen before this jury and i think that it is clear with respect to the scope of sur any sort of bottle that mr john the honest wish to offer was clearly bar by by the precedent concerning the scope of servo i think the st circuit case in games is going most helpful but this circuit's precedent itself makes clear that any sir but it would have to attack not the generalized implication of it but that is the evidence itself and it would have to address an issue that was not already at issue in this case and that's really the key point here which is knowledge and intent as the defendant himself concedes was the issue in this case it was the issue from the get go and as a result he certainly understood that jason glonass testimony if in fact it would have been helpful to him was always going to be relevant and the strategic decision not to offer it to avoid the four o four b and then to seek to offer it and serve at all once the this the for over b have been triggered is is not proper i will no if he thought that the government's evidence on intent was so weak in its case before the wresting that it wasn't going to call the sun because there were a lot of risks unless my son testifies and say i was i was kept in the dark about this why one shouldn't be allowed to do that i'm trying to figure out why our president would be so strict on this i think there's good reason for the president to narrowly constrain surrebuttal cases as a general principle trials are not meant to be an endless round of who gets to talk last and so as the trial proceeds will is much more constrained than the initial case and the serve bottle even more constrained only to address those new issues that have arisen and that's a key point it's not a new issue the knowledge and intent has been relevant all along extent the defense makes a strategic decision to limit its case in one way it does not get a nd bite at the apple you don't get to say i'm not making this argument so the whole trial unfolds without evidence that is relevant to that argument and then at the last moment in closing you raise a new issue that triggers oho i'm sorry please keep finish go ahead a tragedy or this is so in some ways it seems to me your argument is very much tied to  unique facts of this case we do not have a case where the defendant thought he had removed knowledge of intent from the case you weren't allowed to offer this conviction that it's not because it wasn't  only been put into play by the summation and your and your rebuttal lappets i think that's exactly right i don't think it's limited to a case of legal argument vs evidence but the point is that surrebuttal can reply rebuttal evidence only both to directly undermine it and where that raises a new issue in the trial write a new issue not a not a preexisting issue and because here the exhibit the issue was staring you alibi witness who used a notebook with him written notes of calendar entries that purportedly corroborated the witness's testimony to have been with the defendant in roboto the government then called a witness who basically said these expert says these are authentic you can call them is going to directly address the government's rebuttal evidence but you cannot call people we're going to offer more alibi evidence in a case where alibi was always at issue and i think that's true here i will note one other thing which is i don't think it matters because legally speaking there was no grounds for us or rebuttal case but there is i think it is far from clear that jason glonass would have in fact offer of the testimony that is being  and i think the district court certainly did not abuse its discretion in declining to allow him to travel from california where he was incarcerated to conclude the try welcome back gets into whether maybe there was needed to be another step before appeal the government does not object to any modification made with respect to mr cooney being made with respect to mr john thomas as well damages that the tribe is claiming yes the apple he responded we can't hear you mr s lander just make sure your microphone is working how about now you say good we just want to make sure technically we're all set so mr de hill i have it noted that you would misapplied pleading standards to dismiss the petition to vacate best based on an alleged insufficient diversity jurisdiction pleading into the court below ignored into carbon in myriad cases following it when the court  granted dismissed the petition to vacate for untimely service beyond three months which is a misapplication of a statute to service on a foreign respondent when the statute has not addressed service and therefore timeliness for a foreign responde to start with the timeliness issue the court below erred as i mentioned before because it clearly ignored into carbon and the court below applied nine u s c twelve to a foreign responded as if it was a clear cut choice to be made in this particular case respectfully the court should have considered the factors st addressed in the southern district opinion into carbon nine hundred and ninety three which has been cited leukemia by courts since then which looks at the unique circumstances of arbitration fairness no notice particularly where in the case like this there's clear cut jurisdiction over a pardon i'm going to jump in a little bit ahead of the six minute mark and i apologize for that you talk a lot about interpreting but it's a district court opinion right it's not binding on us the one hundred percent your honor that if that is correct and we perhaps focus our attention to the extent you think that there is the binding precedent that of the supreme court of this core that would actually potentially constrain or guide our decision we understand certainly that it to carbon may perhaps be persuasive and that's fine but could you just lead by telling us what are the boundaries of precedent as aside from you know where you'd like us to go but one of the guy posts that by stings that bombed us well i would say your honor i've used we've not found anything within this circuit north the supreme court level to the extent you're asking dealing with this express issue the only circuit court that we've seen that it's addressed the solution again this would at best be persuasive to see the d c circuit which itself doesn't deal with any of the issues raised in inter been perhaps direct your attention to and i'm probably going to get the name of the case wrong but i think it's something like florists is that how we pronounce it the nd circuit decision which is a little bit different from some time ago but it seems to suggest that three month deadline in section twelve is binding and i think there was language to the effect that there is no common law exception that this is a creature statute and therefore we are not to applying a common law exceptions so would you just address floor safe and how that in your view why it applies why it doesn't apply not relevant argue that it's doesn't apply it's not relevant because it didn't deal with a foreign respondent it dealt with all of the cases that are cited by the court below as well as by the respondents here deal with precedent that deal with the very narrow deadline what is it that makes a foreign respond in not fall within that statement that we made two reasons your honor number one because the statute itself doesn't speak to service on a foreign respondent only speaks to service within a district whether the district in the court sitting or district within the united district you know it within the united states and fact that statute itself also still contemplates u s marshal service so it is it is somewhat out of date was there to make sure i understand your argument right you're suggesting that because the service of process method part of well could not apply in any conceivable foreign respond in then the whole section twelve itself goes out the window in other words the three month deadline also goes completely out the window when you have a foreign responded that all of section twelve by definition is now in a plausible your honor the argument the position or take is that what needs to be taken to account of the facts of the particular case to looking at what the foreign service cells let's work help me with the statutory construction argument st though because again if you have section twelve by understand your argument that two sentences about method or process don't apply in i thought you were then arguing that if those like the st sentence similarly does not apply that's your yes i am making that argument because of this in your view is there no deadline now your hon it would have to be construed in a manner consistent with the idea of providing at minimum notice within within the time period or is close to the time period that set a force in the statute as a as a as a guideline in fact if you look at the cases that apply the concepts found in into carbon clinging to carbon itself there is at least notice within the timeframe contemplated by the statute so it would suggest throwing the whole structure that you're suggesting that the  st sentence of section twelve does textually apply to foreign respondents because it says that notice must be provided with and ninety  days well it's within three months but it's also well it did make a difference and it's it makes a difference in this particular case but the you know the argument your honor is that the the the statute speaks of notice notice of a motion of notice of motion would be made within a three month time period when i'm stating instead is that literally speaking not statute that sentence cannot apply to a foreign respondent because where you presumably have taken vention service it's impossible it's in three months it just literally isn't possible and the facts of this case demonstrates that as well so the argument that we would make is that if the statute needs to be given at least guidance doesn't address the former respondent but rather than ignoring its entire text and say well there's no rules that apply to a foreign respondent we would argue that if you look at the the fairness concept that is addressed in enter carbon the reasonable is of notice the lack of prejudice one could still determine whether or not they thought the statute has been met for commencement for commencement  purposes i guess i'm having trouble then understanding it so you're saying that we should apply i guess for back like a better word the spirit of this that you that you're saying that because the words of the statute cannot be service be made outside of this three month time period we noted back to the court that in this case since we had foreign respondents there wasn't it was not possible to serve within twenty one dollars days that we would need additional time because of the hague convention which eventually we got correct your jurisdictional pleading to make it more clear number two if this is the schedule upon which you will we will effect service within twenty one dollars days at that time we had already made the request we could not meet the hague convention service in twenty one days but again i want to emphasize we were already beyond the three months time period when the court was in our view operating consistent with intercourse because it was not a discussion about whether or not we needed that time in order to meet the three month time period it was talking about separate something separate and i asked a question you make a number of assertions throughout your brief that the amount of time it took you through that one cannot serve notice through the hague convention within three months and as far as i can tell you seem to say because it took us four months it could not have happened  faster i was trying to look through the record and it looked like a number of the defendants were served on july th and a number later in july what wasn't clear to me was when you transmitted t i don't recall i can tell you it was in it was by the end of may because if you look there's an order by the court to permitted i think it's on may twenty two to trink the number of documents that needed to be translated so therefore went out promptly there after the last question then is was most of the time then eaten up by translation and if so you know i mean after this is perhaps getting more into the weeds and i need to but it is a subject of some curiosity to me you know after service was affected for example on july th you know you didn't file something on the on the docket until september nd was that a delay in returning the proof of service goes back to the central authority the central authority then prepares the papers that that basically port that the service has been completed and those papers then need to be translated they were sent back to us and they were filed so yes they may have been that rule in your favor what would you like your opinion to say about this about the three month period when it comes to foreign fought for independence or i'm sure this the way i would and i anticipate three month time period provided in the statute i mean can we had a thirty three thank you provided notice at the end of the three month period right the last day that's correct and it was it was after business hours so there's no way that service could have been could have been complied with even if it had been domestic it was just everything was as it was was way too late wasn't respect for your honor the reality is we have a thirty three page opinion arbitration or more substantial time was spent determining whether or not to proceed to prepare the papers to pull the trigger to go ahead and do this yes candidly if what you're suggesting is could we even advance saying look we're planning on making a motion will you service was effectuated within about two months now took longer for you to get that proof of service back but if the latest i think was it's a like th service and a lot of those folks were served on july th so it looks like actually the hague convention is not quite as dramatic as you make it out to be in the sense of always and everywhere taking longer than three months it looks like in every instance service took less than three months now it took longer for you to get paperwork back and get it filed and prove to the satisfaction of the court that you did meet the three month deadline it looks like you did well that it took less than two months i think you get your honor i think there was nothing available to us to my understanding and i want don't want to go beyond the record too far but to my understanding because it's a little just because it's all over who is married didn't and the process even under the hague convention even before he was getting the paperwork back the paper got to go back to the central authority the central authority then prepares its report which then gets sent so right my point being that later and maybe it would have taken until september that you could have said to the district court ok now i have proof that i  of this within three months but can i go back to a completely different issue and i know we're we're keeping you on your time and i apologize if the opportunity which is the diversity a it took you a long time or your party i don't know what you but it certainly took the milberg a long time to get its diversity allegation a straight and even when you didn't when you got to try three i mean there's still some quite some ambiguity there is like are or were and i have to say that when i read that i'm not sure what milburgh means that they are or maybe some of them are and some of them were or some of the partners or other partners and it seems like that was i mean this isn't this i come from a criminal background so i don't know how easy or hard it is to allege diversity but i would have thought this is pretty easy you say at the time we filed the partners were n b a was a citizen of new york b was then a citizen of iowa done yes your honor although i also believe a fair reading of the of the allegation in the to the rd effort as as you've noted is it also reads that all relevant times partners were citizens of the state i know it says there's a just there's no there's a disjunction submit something as to their residency the simple answer is your honor i'm working with you know work working with my client and made a request and they rightly understand that the court now we have to deal with why did the court urge you not having enough questions about the submission to conclude that you just hadn't satisfied it does not satisfy jurisdiction tell us why we should don't i don't really remarks yes yes no i actually i don't know that there's anything for i mean obviously when it's only answer more questions or if you want to sort of or to mr auslander but whatever the court prefers that's sum up the arguments on this appeal what you know is i think we could say that it's too little too late and unprecedented and i'll start with too little and all and i'll begin with diversity since that is where december so there was a six month period in that six month period the st bit to diversity and federal question the district court the very next day sue a spot today said you're going to have to give me more on diversity among other things or i'm going to dismiss this plea and so i may not and they came back and they filed this nd petition and in that petition milburgh alleged that it was a partnership of one with the citizenship in new york partnership of one is not a valid partnership under section ten of new york's partnership law and so then on october th after they're done some various communications from strict court they came back and they said well we actually are have two partners who were or are citizens at all relevant times and then dismissal motion mr spencer who only claimed to be fully familiar with the workings of milburgh and the citizenship of its partners submitted his affidavit rather that his declaration rather than milburgh submitting a declaration for example of the partners who had actual knowledge of when they were citizens of new york at the time of the commencement of the petition but let me ask you counsel pleadings of diversity like pleadings of the klang only have to be two partners were are united states citizens of the time of the at the relevant time which we assume the relevant time is the filing why is that  pleading of of diverse jurisdiction because when it comes to two pleading diversity st of the cases the one in the circuit is that inferences we don't hear the inferences to the pleaded leader has a burden of affirmative is the cleaving why is it plausible that that therefore he satisfied diversity jurisdiction because when we look at this particular declaration and i will say i will say this your honor for that for for argument's sake i've been a partner at my firm for most twenty years so i've got lots of different partners and i can't tell you that i know what the citizenship is mr spencer when he put in his declaration instead of saying i know he just said i'm familiar because i've been involved with these people and i know them that's not enough to even come especially after six months to record them and especially one other point after the district court six months earlier said you've got to allege the citizenship of milburgh in its entirety so milburgh was told exactly what it had to do six months earlier and on its th effort it comes back with a declaration by somebody who doesn't say he and so they were or are citizens the district court properly after a six month period of asking millbrook to get it right and it's not difficult to get it right any pleading diversity of a limited partnership means you plead the citizenship of each partner and in fact the district court told them to do that on may th when you factor all of that in and you look at the months that passed and the temps and moreover your honor remember that they started off claiming that was diversity in federal question dropped federal question then they said they had one partner and they said they had two partners who are or are citizens of the state the district court wanted more after six months given the vagaries of the pleadings that had come before given the differences in the different statements that had come before and this exploration typically of declaration right would be by somebody having knowledge this declaration on a motion it wasn't the petition itself it was in opposition to the dismissal motion was a declaration not on personal knowledge and it would have been simple for them to put in clear ations by the people that had personal knowledge or that knew or even somebody that could say i know because i'm his next door jurisdiction allegations but if we were to ask mr de hill on his rebuttal to just repeat what he said in the blue grief which is look you know we got these two partners at the time of the filing of session they were citizens of the united states if we were to exercise their discretion you would agree that we would be allowed to allow them to make a filing supplemental here on appeal and i could clear it all up right i would i would never have that it would discretion you may not want us to exercise the discretion but you would agree that we have the power to do that right i would never attempt to limit this court's power but i would say is that if a court were going said it earlier on and you talked about where you are coming from a criminal background you know but it seems fairly easy it is fairly easy and that's why the district court the day after they filed the st petition said hey look you have to allege the diversity of all of the citizens do it or i'm going to dismiss it and it goes on and on through multiple iterations of conflicting statements it's one partner it's two partners then there is are or were in the when you look at cases like floor sites or harry pronounce that which talk about there being no common law exceptions you know that case of course was about the timeliness of raising a defense to a motion to confirm an arbitration decision right there d are lots of cases protect me from the supreme court since then saying that we presume this is the supreme court presumes that when congressman access statute of limitations does so against the background that equitable tolling will apply unless congress affirmatively says something to the contrary to make that it doesn't so i guess what i'm wondering is given that flora sites seem to be dealing with particular issue which was what's the deadline for raising a defense against confirmation is that language  about no common law has tensions really and would we be obliged to then follow the supreme court's pretty consistent rulings that equitable tolling applies unless congress speaks clearly a is a holding itself up about the statute saying look the whole idea of petitioning to vacate in a war is a creature of statute that's what it is that's why there is no common law exception to it and that is why this court in forest specifically said there is no common law exception to the three month limitation period and that is and then of course i am glenn and treat triumph in the other cases in different fact patterns have discussed section twelve as being strictly construed and not subject to equitable tolling and even absolute and that is of course what the case says i think that it is not kicked that is how section twelve is deemed to be because it's merely a creature of statute and not a creature of a common law i think you're right i think there's something in the record though that i want to address it isn't that they actually went ahead in this case even if even if the court were to assume that it should it should apply some equitable deference in certain instances and it to section twelve which is not thus far the law in the circuit at all with no exceptions there are none thus far but even if the court were going to do that this wouldn't be the case not merely because they serve the russians say not because they served the petition on the last day of the three months they actually served it on the day after the last day of the three months because rule six under under anglin for example says that you actually start the counting on the date of delivery so the last day would have been may th not me six when they served the petition but even if you were going to assume again so now assume equitable to should apply and now soon it's may th and not may th well as your honor and as the court pointed out earlier there was no reason no and in this instance why they couldn't get the service done your honor pointed out that the appear to have is so even if you accept their view which cuts against anyone that the last day was may th and not me th they didn't even consider service until may th of in a war or to make it in a war that they got on february th so there will be on do they if they were considering it on me th and they did the st service by june th it's hard to imagine an argument that hague service within three months would have been that if you really thought that big an application to the court early on it will for and see if there's some substitute service that the court would allow nothing happened at the very best as the district court said at the latest nothing happened until may th we say that's one day too late under those cases that we've cited but even if it is it they waited until nine fifty three in the evening on may  ask if we would accept service it there can be no question that they didn't start drafting the petition on may th so at some point they could have reached out to us they could've attempted service they could have gone to the port they could have done something and frankly they pleading after four attempts over six months after it was warned basically on day one afterward file that the court would dismiss the petition if they didn't get it right and there's no reason to go ahead and apply equitable tolling to section twelve where they overwhelming indulgence equity is based on fairness and equity certainly shouldn't be based on a willingness to be blind to a party's requirements that it failed to it here to time and time and time again over months that is i hope that it is your question ok that's thank you very much and we appreciate that yesterday while i believe that you have reserved two minutes for r this but if the court were to decide that we wanted to give you one opportunity before us to amend your subject matter jurisdiction your diversity allegations would you be prepared to send us we are the two partners who were the partners at the time and we are citizens of you know whatever oklahoma i know is that you're on a sort of thing that you one hundred percent absolutely your honor you know we would undertake that the only reason i can speak to timing is because i don't know where people are but we would make that effort and we don't see why that couldn't be done and would appreciate that opportunity to address  you know the circumstances one you know thing i know with regard to you know mr i was slander and talking on the jurisdictional point you know i can understand the kind of expressing an idea of the court perhaps was fed up but i don't know that being fed up as such is enough to distinguish a right i think there's never been a bona fide question as to whether there is in fact diversity here and can and counsel is never said differently in an opportunity to provide additional support directly dealing with the issue from the two individuals in this toddler mr philips providing that they were citizens of the united states at the time this was commenced back in beginning of nineteen we would do that and welcome that opportunity to of extension of the statue of limitations actually is not really the way in which the cases that we've relied upon focus on it what they talk about is they do use the word fairness which of course is an equitable principle but that the terminology that  honor we would i would my response would be that we had a thirty three dollars page opinion we had to terminations tomatoes whether to move or to appeal the basis upon which and under no circumstances could it be suggested quite candidly that all of that can be done and a convention service within the time period of three months it's just it's just not feasible i do know by the way that the june th service was done outside the hague because it was a party in lichtenstein it wasn't under the hague convention as one of the many parties but but  provided within three months the notice that we are moving to vacate this and that the fact of whether or not it needs to be translated and we have to go through the hoops to try to serve this shouldn't be held against you know given the fact that the three months in the statute doesn't reasonably apply to a foreign respondent is that the answer is that the it what's in equitable would be for the respondent here again having participated agree to jurisdiction in new york participate in arbitration and new york then saying well you are unable to very much well argued very helpful arguments and we appreciate your patience with these technical challenges we will take the case under advisement also note that there are two other appeals calendar for today that are on