this appeal presents to district court decisions for review the st is the dismissal of this action on the rule toby six based on a disc on disputed factual inferences drawn from a french brief presented by its blue that was a document outside the pleadings within the meeting a rule told d c and the nd is the denial of appellants motion for a preliminary injunction and his stay against the nd filed new york arbitration based on the same disputed factual inferences improperly drawn from french brief without taking judicial notice of the french brief and without an evidentiary hearing as to the appeal from the dismissal that appeal is controlled by judge walker's opinion for the court in  york times which was decided about six weeks after briefing closed in this appeal palin held that the procedure and rule twelve d is mandatory and an obligation of the district court the parties don't have to request that it be followed or object when it isn't appellant explained that under rule twelve d the district court had only two choices either to exclude the french brief from its consideration on the motion to dismiss or else to convert the dismissal motion to a summary judgment motion and afford all parties the opportunity to present supporting material as in pail and here the district court did neither and its dismissal of the complaint must be vacated so you see you say that the case even though the document the french brief was properly in the district  brief originally in opposition to the preliminary injunction motion but in its reply brief in support of the motion to dismiss it made reference to the french briefs specifically as additional support for the motion to dismiss and more importantly would be admissible right as long as you could take judicial notice them if you could take additional notice notice of it the question is what was being taken to dish will notice of the mere fact of taking judicial notice which he didn't do notify the parties not only that he's taking to just notice of the brief but the tenor of the matters of which in the brief that he wants to take notice of and that would have required identifying the particular statements in the brief that he was relying on and the factual inferences that he purport proposed to draw from those provisions of the brief and letting the parties have an opportunity to be heard on that none of that happened what  supposing we accept your proposition what would be said to countervail what countervailing thing would be said well i would if if you had been given the opportunity to dispute the inference drawn by the court what would you say well st of all the french brief is extremely vague about the denomination of the parties it makes are it is that brief that submitted by both the by the predecessors of both appellants it makes arguments however some of which only apply to one of the two appellants some of which may apply to all of them but what about the particular thing that the cord focused on didn't it didn't it's a with  i don't i don't believe that's the case your honor because it was a any reference to as i recall to said jem sajan had been used as a term by the other side throughout their brief and this was or this was footnote in the brief that's that's fairly unclear it says that sajad refers to the companies and it refers to both companies however later in the brief there is reference indeed the foot though right underneath it it says when we talk about the german company we're going to call it sad g m b h and there are points in the brief later on where they w critter for having muddled up the identification of the parties and emphasized that the two are separate so i think it's not clear cut up at the opening footnote in the brief says companies beef companies that's right underneath it it says in the nd footnote in the brief it says that the german company is going to be referred to as said jim jim b h that nd footnote also i mean we're parsing it closely but that nd footnote also says  here an after meaning in the future the st for the note arguably refers only to the initial reference i don't want to get too much in the weeds with it let me ask you is there evidence that you would want to put before the district court if we were to agree with your proposition that the further proceedings are needed before such a germany could be or said germany could be dismissed yes we would we would want to put evidence before the court with regard to the people who wrote the brief their purpose in writing the brief and there and then when the reference that they the reference that they made to the parties in the to the brief based upon you know basis of the brief is ambiguous that that's correct you are i mean the idea here is that the before the district court drew inferences based on that not entirely clear reference the inference of an intentional assumption he's making a factual determination that that said germany by saying whatever it said in that brief intentionally assume the obligation to arbitra in any situation where he had not signed the arbitration agreement there as a factual findings there other conduct evidence regarding conduct of said germany that you would reduce that would be inconsistent with a no adopted by the district court that by its conduct as well as by these statements said germany is bound by the arbitration provisions of the the well i think it's clear that in the for example in the new york arbitration that's pending now said germany has very clearly after the fact well i didn't start far after the fact yes but i think yes there is evidence that said germany considered itself separately was represented separately in a number of the proceedings and we would be able to present evidence now i can't predict if the district court would find in our favor or not but all this all this appeal is about is that we ought the parents tribunals has jurisdiction over all claims between all parties contra this is a gesture and in the motion opposition that terrorists award is final and definitive as to the issue of jurisdiction it's called  partial or because it doesn't yet address the merits but that's the jurisdiction is not subject to change and the in the new york arbitration we asked the new york arbitrators to rule st on their jurisdiction before going to the merits they declined to do that so we now i was situation which both arbitrations are guaranteed to go the whole route simultaneously in imperil question if i'm correct it's my impression that you did not call this problem to the district court's attention and asked for the opportunity to to supply you with your arguments and factual  germany's own statements they are clear and unambiguous and they demonstrate its intent they demonstrate in fact it's acting under the arbitration provisions of the license agreement the nd point is that as the germany is actually not prejudiced by the district court consideration and reliance on the french brief as you do germany in fact had notice an opportunity to respond to the french brief and they did so that there are not all of the of the motion for a limited injunction is one itself of the arbitration provisions in the license agreement when it was before the french court and it said it does not matter if it's at nine b or nine c it said we shouldn't be here because nine in this case nine c applies as e g germany acted as if the arbitration provisions applied to it so the judge wasn't taking a particular statement in the brief it was actually taking the assertion that as he determination that notion really more like a judicial a stop is what the district court relied on and it also makes official a stop argument and that requires that the parties have taken inconsistent previous positions and prevailed the judge can do that the judged to district judge used the assumption there and applied it correctly this is very similar nearly analogous to the transvaal situation you had a nonstick this seem to me to be an acknowledgment of the orbit tradition agreement applies i mean to say to the court to you if you assume that the arbitration agreement applies to us it doesn't provide for arbitration hears are you going to dismiss the arbitration that's not that's not seems to me the equivalent to saying we knowledge that arbitrate the arbitration agreement applies to us so even if you assume it does it that's correct that's correct and have to do with these issues and secondly there was no opportunity for in this case for your adversary to make any kind of presentation to explain the french brief so you know our opposition to the motion for a preliminary injunction and that's where we invoke the french brief our counsel are opposing counsel directly responded to that in their reply and i appreciate that we're talking about two different forms of pleadings however what they said is meaningful because they did not contradict the actual substance of that statement that it made and this is that docket entry twenty one footnote to what they said and they said this in the footnote was quote when petitioners argued nearly three years ago that the claims fell under to germany was a party to the settlement agreement the settlement agreement did two things that are important the settlement agreement incorporated a dispute resolution clause that allowed the dispute resolution clause of the license agreement that article nine arbitration provisions to stand as you do germany signed that two thousand and eleven settlement agreement so we view we don't even need to get to the assumption by conduct they have assumed signing they are signatories at this point they are also part of the s t s group is the collection of staff wrong and its predecessor companies and s t s germany is one of them is the ability to be granted sub licenses under the license agreement so do your honors points there is plenty of other evidence even if we don't get to the assumption i want to just respond briefly on the identities of the parties in this suggestion that the nominations are in any way imprecise the s companies and their predecessors are extremely sophisticated represented by counsel in france and in the us and they define terms and they they define them clearly and the reference to saddam under nine c is a reference that we have to take at it word this is what the lawyers for both parties said for both parties and again i look at their response in the footnote in the reply brief the lawyers who represent at safwan and the i c t companies in the district court proceedings below similarly made that argument i think that we're seeing now that it's one of the plausible outcomes of the agreement and i think if this court views it as he germany has assumed to are signed on to the license agreement and it's taken on the obligation to arbitrate that question of arbiter bill it is fundamentally one and i united states pursued he would continue right that may be the case however the arbitrator's in this case are perfectly capable of handling those questions and these are again very sophisticated parties very sophisticated arbitrators they are capable of handling  role and the same way i would i would add we don't do these as like arbitrations in the sense that the identities of the parties is one of the essential elements to apply the st filed role as you do germany is not a party to the ad hoc arbitration in france that is essential for our claim and for our the relief that we are seeking before the i c c in new york it's a move on just briefly for the motion for a preliminary injunction on two different proceedings we believe the opponents have no where near met their burden to show that the judge abused his discretion on the basis of the french brief that was before him on that matter it's well within the permissible options that he deemed  germany a signatory to that agreement there was no request for a hearing which is about my colleague refers to in their papers and the failure to request a hearing on their motion for a preliminary injunction in fact we have said and even if they've requested a hearing this particular issue is not one that needs to be resolved by a hearing because it was perfectly amenable to resolution on the face on the face of the record the paper record and we go back to here these are unambiguous objective statements by asio germany and the french brief this is not asking the judge to make inferences to judge credibility to do anything beyond take the words on the page for what they mean and the words on the page were clear and the words argue to the court to to argue to the court that this was not arbitrary that's correct and they were arguing to the court so that the difference in position i would i would say is explicit has never germany was comfortable going to the french court and saying we can't be here and it wasn't saying as he didn't make this argument as cd and as he germany argued to a french court we can't be here because these disputes have to go to a different arbitration if s c d germany ought not to have been there because it wasn't subject to the arbitration provisions it would have been capable of making that argument because that one being a true argument for it it one be the case that nine c sort of applied because that no arbitration pr the two that to argue that the terms of the arbitration agreement don't call for them to be in the french arbitration that's not the same thing as saying that the as as acknowledging that the terms of  require them to be in some arbitration i think that had been the case that if you'd itself isn't it that if it had not conducted itself under the arbitration provisions of the license agreement i cannot envision why it would make the argument that nine c applied to it and i don't think that there's a dispute that it was s t d germany and s e d making that argument to the french court all right thank you very much that we'll hear a rebuttal thank you are a couple of points st of all my colleague appears to argue that the french brief was not outside the  test is whether it was relied on heavily that's the quote in as the panel an opinion said whether it's relied on heavily in the petition that i wasn't relied on heavily was rely on it all it's not mentioned at all secondly she corrected  that there was a response made to it and to its meaning in substance in the opposition to the plan well we made a response to it with regard to the plumber injunction their entire opposition their entire argument about assumption of the obligation to arbitrate was based on the settlement agreement that you heard about the two thousand and eleven settlement agreement which judge kaplan did not reach at all so he didn't rely on that the decision is not based on that it was only at a time when we had no longer any opportunity to respond to them in their reply brief in support of the dismissal motion was the st time that they had one sentence in a footnote relying on the french brief in support of the initial dismissal motion and again just to confirm that you didn't seek any reconsideration pointing that out to the district court we did not and i don't believe there's an obligation to secret your consideration especially since the district court's opinion made quite clear the view that the district court had and i thought it seems to me that that would have been a vain effort it was a consider this record and respect his decision footnote twenty five in pale and specifically says the credibility and the drawing of factual inferences are examples of things that cannot be done properly on summary judgment and again that's the  part of why this case that this decision has to be vacated not only wasn't the case not convert the motion not converted but the decision was made based on resolution of the factual issue of intent which even if it had been converted would not