we will turn to the last case on today's day count the rotting versus catholic dispute the district court dismissed the judiciary ak forty seven dollars claim on the sole grounds that the claim asserted in the district court should have been brought in the original proceeding in which the cited in our brief the new york new york has specifically helf than a forty seven claim need not be brought in the action in which the attorney misconduct took place  in fact in the melcher case it was a situation where the attorney misconduct was alleged in the nature of submitting falsified documents the opposing side in that case made motions to strike the only allege one wrongful act there is no requirement of any sort of a pattern but here the complaint alleges over a nearly three year period number of wrongful acts by the attorneys one misrepresenting presence of the defendant in the york as we allege in the complaint there was an l statement made representation to the court that the defendant had no presence in new york despite the fact that the general counsel had an office in new york the company was licensed to do business in iraq the attorney making the representation was receiving documents from the general counsel in new york and the main interface was the general counsel who had the office in new york as a result of that there was extended motion practice on whether or not to transfer venue ultimately was successful in that just as in the melter case were all ultimately  they were successful in terms of the underlying claim nd set of wrongful acts over a three year period there were repeated misrepresentations about the status of discovery st there was representation that they were searching for documents then there was a representation that we've made the production this is all we've had then there was a transaction between the attorneys to clients of the sale of assets and a subsequent representation that they were still searching for documents then there was a representation that the electronic documents were on a server but that the server had been rendered in operative then there was a final representation almost three years later that the server had been wiped clean those were multiple misrepresentations by by counsel the search could not have been undertak represented in court given the fact that for some most three years a server apparently was never looked at instead it was transferred one up one of the lawyers clients to another of the lawyers clients who then proceeded to wipe it clean  addition there were invoices that were submitted on a motion for summary judgment by the defendant on counterclaim in that case they were submitted by counsel those invoices were supposedly supported by underlying electronic documentation which was destroyed the invoices were companied by an affidavit from the general counsel who i just mentioned who in his deposition testimony testified that he actually didn't know how the billing arrangement was handled and did not actually know how the specific numbers were calculated as a result of those misrepresentations the court in new york entered summary judgment in over a it had to spend hundreds of thousands of dollars in legal fees and contesting a claim that was based upon as we legend a complaint a phony invoices and supposedly supported by information that was destroyed during the course of the litigation in addition counsel stood in front of the court in state court and represented that there was no need to worry about a proposed sale transaction or his client was selling assets saying there's been this two million three hundred thousand dollars which is sitting in our client's account we now know that that was false recently and this is not in the record but in judgment in forcing proceedings in the state court action we've learned from the executive of the company that the money actually two million of the two three never even made it to the company that it was used to went into a different company for the specific purpose of a point creditors such as and when asked why would your counsel have made the representation that there were two million three hundred thousand dollars he said i have no idea so in our complaint what we seek here are their fees for having to defend against claims that had no basis and that were based on information that that was not authentic for having to press for information to try to defend against the case and also prove the case in the face of repeated misrepresentations about the status of discovery and also for the delay to hold off our client from finding out information so that it could determine whether or not there were creditors rights that it could assert or or make certain take certain steps to protect its interest as as a creditor all of those things that i've just told were either issues that we prevailed on ultimately prevailed on or that no decision was ever come to so the cases that the district court relied upon below each of those cases were situations where the party who was bringing the four  claim had lost in the previous court it had lost in the courts in each of those cases and i think the rationale was very consistent it found that you can't back door and try to challenge a decision of another  by coming in now and making a claim that the attorneys somehow did something that led out of the court to so decide in this case we do not challenge any decision of the state court we are not asking the district court overturn anything we are just asking for the damages that we suffered as a result of ultimately having to prepare prevail ultimately prevailing on the issues that i  terms of the invoices throughout the underlying state action or has repeatedly claimed that the invoices were false there was no such finding that the invoices were false in fact invoices created by vista which were created before ca based on a chain additional services that were was providing the nd agreement an entirely supersede the two thousand and one agreement and because of that there was an issue of law as to whether  the whether certain provision in the two thousand and one agreement was operative it was that provision that the invoices were created under and it was so confusing as to which of these two agreements was operative that were  initially initiated the state action under the two thousand and one dollars agreement later amending their complaint to initiate to add claims under the two thousand and four agreement when both parties filed for summary judgment in the state judgment on behalf of the counter claims on behalf of mr eventually the st apartment overturned that found the two one thousand and four dollars agreement to be operative neither of those decisions turned on a material  exception if one of those corporations maintains a place of business in new york there is a legitimate to spew st in the form on convenience which you know whether to maintain the place of business in new york or not was not relevant that there was no dispute that the principal place of business was in tennessee all their servers were in tennessee for the most part all their witnesses were in tennessee who were similarly was also a foreign corporations so that was a legitimate office in new york writes actually king kessler didn't make any representations us to that they said that the main place of business wasn't tennessee they actually learned later turing the deposition of  e general counsel who is actually based out of new jersey not out of new york there's no dispute there that he occasionally uses an office in new york when he works in new york after he testified to that it at his deposition five days later there was a conference in state court and kessler told informed the court of the testimony soon as they learned it which was also before the motion practice was decided and when the eventual decision presence of mr cruzan in new york his occasional use of an office suite in new york as a reason to deny the motion to dismiss so you know or claim with respect to this was there was some convenience claim for dismissal was still appropriate even though it lost a bench only and then in terms of the servers in represented there is no dispute that did not represent either belief at the time and there's nothing pleaded in the complaint that they had any intent to deceive the chord or had any knowledge that that wasn't true and actually did in fact was true because vista did produce hundreds of pages of material just not the so you know certainly and each step of the way or asserted sanctions again on its attorneys it claimed to lead these are all arguments that were made in the underlying case certainly  actually did it did not print monetary sanctions but did grant an adverse inference with respect to those white servers the court found that that to be the appropriate sanction because there had been significant material already produced aura and also because aura had its own material to substantiate its claims so it didn't find that there was any misrepresentation warranting sanctions with respect to the servers  and on top of that there was a concern in the case that had they brought the forty seven dollars claims in the underlying action before it was closed that there would be a motion to disqualify the attorneys there's no such concern here has been withdrawn from the that's correct and i want to point out that nowhere in the complaint to they actually point to any specific material representation that concussive are made and there's ample case law cited in our paper saying we happy to say some  law for eighty seven dollars claim against an attorney for mere discovery just buttes and failed motion practice there has to be an actual misrepresentation or pattern of misrepresentation that's material to the decisions in the underlying case and certainly they can point to no affirmative represent that they're made it's merely an effort to try to go after what they see as the deep judgment on the damages there's been a judgment on liability just not on damages there has not been evidence presented with respect to damages or the evidence presented but it has i believe it hasn't been presented to the court so you would interpret the general myers opinion to be limited to situations where the proceedings in the state court are still ongoing right certainly but that they were whether they were known tin certainly whether they were known to the claimant at the time the actions took place and here in every instance not only were they known but were made the very same arguments that they're making here in the underlying case for example m withdraw or argued that it was just a mere delay tactic they argued that to the court that's what they're arguing here is some kind of misrepresentation that kink house are somehow wanted out of the case it's a delay tactic for their clients which then they should have kept their mouths shut stay perceiving and just suffered slings and arrows and then they would have been able to do it well no actually it's not the standard is that whether they had all the information necessary at the but the underlying proceeding was so it's two separate issues we're arguing we both argue that they can't bring the case in a separate plenary action centrally form stopping to come to this court here and then separately we also argue that all the claims are a clue did by collateral stoppel so whether they were fully adjudicated or not under the argument that they can't bring a separate plenary action when the underlying case ongoing standard that you cannot bring a separate plenary action that is not greater in scope that doesn't assert a greater fraudulent scheme than the issues at issue in the underlying action certainly here there is no greater fraudulent scheme the complaint is where you're going to get into a contract dispute and as the attorneys for the other side are going to mislead you you just represent the way things are and cause you to spin your wheels and extra thousands of direct representations on that in terms of the false represent what were their appendix for seventy one and for seventy two in terms of the misrepresentations about assets that appendix twenty one and twenty two with respect to the the contention that were removed for sanctions against cain can slip below i know they said that in their brief and had citations the citations don't support that no sanctions were sought against the attorneys below there's nothing in this record to suggest that they were with respect to the little rest twelve that was another one of the cases where there was an unsuccessful party who lost who then came in for eighty seven and made allegations against the attorneys saying you did false things and that's what caused me to lose and what the court said is there's a remedy for that you go into court and you seek to vacate the judgment if you have grounds to vacate the state court judgment don't use for eighty seven as a way to go around that and try it in a different form where they talked about well if you have knowledge about it then they contend you have knowledge about it you can't bring a subsequent action what they were saying there was you had no knowledge about it and so you should have gone to the court and raised  stopped the judgement from being entered not not that if you had knowledge about it you can't bring the forty seven claims and melter teachers just the opposite in melcher as i said before they clearly had knowledge of the alleged the  reverse the denial the motion to dismiss so that we can proceed in federal court at minimum and i'm not at saying this should be the remedy but it minimum the district court in dismissed us with prejudice so on the one hand saying hey you need to bring this in another action and by the way of dismissing it with prejudice so that the defendants here could allege that you don't have a right to bring it rear else would you bring this following to a level my decision well it's interesting because the judge who is presiding over this case in state court has retired in the state court action right now we are proceeding to enforce one judgment we got against the defendant for cost there and that's  for you to amend and to add the attorneys and to add these additional cause of action for a variety of reasons not the least of which is judicial economy the action may be too far along maybe there are issues of conflicts with the attorney so there is no assurance that some seven years now into this even if it were dismissed without prejudice that that you wouldn't be happy that's where we stand with you know because if the rest of the decision stood up to go to state court make an application and say hey judge here i am you know eight years or seven or eight years into this case please let me add a new party and let's redo a whole new discovery schedule and i i'm sorry a separate action well the way the district court decision is it has to be brought in the same action so i don't know under the rationale of the district court decision i could start a subsequent action it would be in state court for him actually still is available to you right in the state court now that action is what he's referring to right well that's opinion you have to bring it in the same action not the same court but in the same action so we'd really be in the same same situation i can be sure what exactly would be wrong with that or why would that be impossible or difficult because  if you're going to bring these claims you have to bring it in the same action in which the alleged conduct took place that action is over that action right now is in prove up to the judgment for some and  damages that's the only issue left before the court why is it impossible to ask for some sort of i could relief of the show that you are seeking which is effectively to reopen or to to remand or whatever i don't think it's impossible your honor i think it's highly up in the air whether we get it and i think that we have a right the client has a right to bring the action is diversity jurisdiction here and i and i think you know we have a statute that nowhere has this requirement that the district court put on it you know the statute one of the oldest apparently in the united states because dates back to seven hundred and eighty seven and it just doesn't have that requirement in it thank you very much thank you reserve decision