certainly can be as in just a matter of discretion if the court like to raise it now or leave it for later under this court's precedent both the hendricks and the point the arizona case this court makes very clear that rule twelve defenses if they're properly raised can be addressed by the courts there's no question plaintiffs have not suggested that this court cannot address address the issue it becomes more a matter of prudence that's when our jurisprudence require that  of the arbitration act and the district court in its motion to stay actually found that the two issues were or the jurisdictional question was necessary to ensure a meaningful review of the arbitration issue that supplemental  immunity context in a lot of it comes down to the policy behind it and i know the policy arguments are disfavored at times but it also behind immunity the policy behind an injunction if you want to review the jurisdiction at the same time it goes to the authority of the district court to bind the parties and that's exactly what we're talking about here as far as it believed was part of an arbitration agreement with the plaintiffs yes this was a back to back transaction yes there's an intermediary broker but believe that an arbitration agreement and all the things that go with an arbitration agreement the costs the efficiencies the expedition expedited proceeding etc so if you look at this court's case in thomas  it's immunity for the see the reason we want to exercise tribute to personal jurisdiction issue is because all of the benefits of immunity go away if we force these parties to go through the discovery go through trial just to find out the personal jurisdiction was lacking that exact same policy is imminently clear arbitration is going to be faster we would likely be finished with this dispute had this just started in arbitration and that's what you're bargained for when they started this whole thing plaintiffs came to florida looking jurisdiction in idaho which in our opinion is quite clear there isn't then it's exceedingly unfair to force them to go through all of the bells and whistles of civil discovery the trial and then come back up where both parties are going to copy and paste their briefs they've already submitted to the court regarding persons or six we've gone through discovery we've all there's no notices used plaintiffs were fairly apprised of this is going to come up so if it comes down you know this court's decision in a case called lovell which deals with summary judgment the court resolved the pit the personal jurisdiction issues using ginger stiction right away purely because of efficiency so the plaintiffs spend a lot of time talking about how injunctions are somehow different than any other issue i would suggest that any time that the court has a properly raised appeal and there's another issue that could be case dispositive and could be better both for the court's efficiency as well as the party's efficiency it makes sense to use the p they say they know that the actual in jews are technically is a trust that's from idaho and then there's this idea of these flight cordon ation that piaggio allegedly assisted in i like to address the each of those briefly in terms of the second plaintiff being in idaho trust they came into the picture the day before your delivered the aircraft three unilateral third party assignment that you had nothing to do with i think the supreme court president talking about unilateral decisions of a plaintiff make it quite you have the drug issue been research developed and distributed out of california which was a form state the supreme court's jurisdiction was lacking for all of the nonresidents because the actual basis of their suit taking this drug being harmed by th drug had nothing to do with the research development distribution just on the off chance that we don't choose to reach this issue do you want to talk about third party beneficiary question of arbitr home under idaho yesterday gerber so if we speak to the arbitration issue i think there's two big picture ways a look at it you have the formalism and the lack of formalism in a different way of thinking about that is if i  i find your position sort of interesting and potentially potentially meritorious but it seems to go against at least one of are precedents to look to florida law on this question or if we don't if we ignore the choice of all aspect in just apply idaho law i think the place is fine of selves in an exceedingly awkward position for two reasons and this does speak to your question first if they want to they came in suing both the broker and us because this is a back to back transaction the broker's been dismissed in favor of arbitration and is either pending or told or something but this case insofar as the brokers concerned we resolve under law it will that's what the district court held right under this for the substance of it because the parties did agree that florida law would govern how the how would florida law or treat the question of whether a party beneficiary counts as a party for purposes of arbitration that is can you force a knot in florida can you force a nonparty to arbitrate even after meant yes the as we put forth in our reply brief we tried to avoid the choice of law discussion because it seemed like something that the district court would do in the first instance but as we put in brief does not believe in this sort of legal falsity of a party versus a nonparty in terms of signatory status they look to the real aspect of the transaction and say everybody knew who the parties of interest here are if you're a third party beneficiary and you want to invoke the terms of the contract and benefit they're under you also have to take the burdens and frankly i don't have the same rule it just doesn't for this very specific idea for party if you look at the bantz case on guard it's a similar situation admittedly not a and that makes sense i mean when it when i started talking with arbitration so this comes down an issue of formalism if we want to play the game of saying who's a party who isn't plaintiffs have no right to move under any terms of this contract any of the terms of conditions or any of the warranty and at least places with two options pursue the broker and the broker obviously brings in as a necessary third party and we're all sitting together in miami having arbitration that's option one option two is they just ignore all these contracts claims and go after negligence well they don't even defend their jurisdiction for the negligence claim in their brief they just drop a footnote and say we rely on the same aspects as our contract is going to this aircraft was designed manufactured assembled etc all sorts of places none of which were auto so either way we're looking at a situation where it makes a lot of sense that we're not going to see the night zero whether or not the pursue these contractors claims dismissed and just for negligence or actually want to pursue this broker have the broker bring us in either way we are not scenario and that's what all the parties expected for the fourteen months that this lasted so i think it's a little so little insincere for plaintiffs to act like they're surprised by a arbitration clause in the other hand it looks a lot like forum shopping that we just don't fully understand i see that ever reached the time i'd like to say for a bottlenose you have any further questions thank you thank you believe that is purely a matter of discretion this went case and ninth circuit precedent do establish that tests need to be needs to be followed by the court into sermon whether or not to follow pendent jurisdiction and in this case we don't believe that the inextricable we intertwined or the necessary test are satisfied here and i do want to address that with regard to personal jurisdiction if the court does want to address that there's a fundamental distinction and difference of opinion here now the trial court did go through a very thoughtful analysis with regard to personal jurisdiction that's at eight through ten in the excerpt of record and it did properly look at the contacts that piaggio had with the requisite four and while that was adequate i do want to point out that the facts in support of personal jurisdiction in furtherance of the contract and what i mean by that your honor and what is clearly a distinction that we think is inappropriate that is being made by piaggio piaggio wants to say that the operative contract in this dispute is contract s contract that is not what my client's claims are on and we made that clear in our brief and i think we've made that clear before my client's claims are based on what has been called the first amendment the second image and then warranties that were provided to paragraph in as a user directly by piaggio and when you properly look at the contract as it's framed as it's truly framed between the parties first amendment and second amendment one of the activities that relate to that first and second amendment and what jurisdictional ties to they have what we have here is significant negotiations directly between and the fast employees and clearing the fast in house counsel and the contracting and we have a physical presence of piaggio sending its planes and its pilots for nine months  and i do want to stress that we're talking about planes owned by p and pilots because as indicated in the walden case physical presence can be a can is a relevant fact and it can also mean as in this case  sending of goods or personnel into idaho and what i mean by the more robust facts your honor is if you look at the excerpts of record for example at one eighty nine hundred ninety  a record two thirty eight extra group record one sixty one sixty two one ninety seven through ninety eight to thirty eight and seventy seven through seventy eight running through these your honor because they relate to a similar thing they relate to identify they relate to interactions between piaggio and fast and its employees sending what is referred to as the demonstration plan plane  replacement plane owned by piaggio and pilots into idaho for nine months and it is entirely relevant the distinction that you would have us make is not genuine for the and like ning of it to for example the contacts in the pico case which were found to not to relate to the to the contracted issue sounds like your client would like to address personal i i was just jumping to that in response to your question your honor but as i said at the outset we do not believe it would be appropriate for this court to address personal jurisdiction but it certainly is i'm sorry but if it does but if it does  it just i don't disagree with your reading over case and spent it just seems to me that there's when the issue is jurisdiction he would seem he fi i mean we're here we're arguing it i'll take this case specific but let's think about what this means as far as president to one i don't think it's sufficient here because personal jurisdiction might change it may never become something that's appealed most importantly separate from efficiency if i could move on your honor i don't think that that's a standard that this honestly do not think that that's a standard that the ninth circuit gets to apply no i buy if i don't disagree with that could you talk the contract provision and this contract provision expressly limits the two parties now in this case which i think is a significant distinguishing point that helps even strengthens my client's position the parties entered into subsequent contracts subsequent contracts in which they chose to expressly state that they were not modifying or expanding that arbitration provision base this is all premised on the application of idaho law and i do appreciate you were discussing why in your view florida law should not apply i'm aware of the gurney but it seems very different where they are there they  entire arbitration clause was held to be unconscionable and therefore not enforceable and there's no such allegation here it's just you know who's bound by and it's not being alleged to be unconscionable in any way certainly honor and we do believe idaho law properly applies let me first if i could address why we don't think that the florida choice of law clause applies and should be considered it shouldn't be considered because it's part of the same issue as the arbitration the choice of law provision the form selection provision the arbitration provision or all exactly the same provision it basically says the parties defining again the same issue we're talking about with regard to arbitration agreed arbitration forum and apply apple application of florida law so in this case the trial court properly considered whether this provision applies and the same analysis that you reach which is i think rock solid analysis when you look at the clean language of the case is that that provision in the charlie bravo piaggio contract does not apply to fast accordingly your honor you can't you can't really i think it would be  so there are all wrapped in the same issue your honor so i would say in this case florida law is not something that fast contractually agreed to for the same reasons a fast and not contractually agreed to target trade so if you take out the choice of law provision because i just don't think that that part of our analysis based on the statement i just made you look to a typical choice of law and analysts is now the trial court when you look through it went through an appropriate analysis regard to jurisdictional questions there now in this case your honor choice of law has not been raised before this court we would assert it was raised in the reply it was touched on in the opening brief but touched on is kind of an odd argument that that somehow was a proxy for interconnectedness they asserted as i understood their argument to be that the pending jurisdiction tests were satisfied because you had to determine whether personal jurisdiction existed before you determined choice of law we had dressed that in our brief we don't think that one that's the appropriate test for pending jurisdiction and also it just it's intellectually there's an intellectual disconnect between asserting somehow the tests are proxy for one another what we get then is in the reply brief these assertions regarding florida law and delaware law somehow applying and really reaching a different result and those assertions are raised the first time that anybody's addressed the issue from the trial court to us is in the reply and i would just note that those cases that they're asserting about really not about whether a florida law should apply but  whether there would be that florida out of florida law would have a different outcome i missed the mark because they're not addressing a case like here in which the court needs to consider what the clear language of that provision means instead they're asserting florida law and in this case delaware law regarding equitable stoppel and third party beneficiary analysis by the way which you know this court does not have we have not had a chance to brief whether or not those apply and i would note that there are issues under delaware third party beneficiary law an equitable stoppel law which include elements that haven't been argued here so i'm spending a lot of time your honor and i apologize for that saying that i think that's kind of a sideshow and i do think that that has not been properly raised as an issue for this court whether or not there is choice of law but well i think challenged it i would say properly for the reasons i kind of laid out with the court what piaggio did in its brief at the trial court level was to assert that the provision applies and florida law applies they did not address whether which whether florida or idaho law properly should apply to the first question which is construing the contract to determine whether or not that provision is a plausible to the parties so that's the distinction i would make that justices are judged ashima your honor to get back in touch if i could briefly on the other two issues and less is more questions about our future ability i don't mean i don't i would just want to highlight again to get back into this jurisdictional issue which we don't think you should hear but you know to be honest we're being conservative so we want to make sure that the record is clear here because these are fundamental i think distinctions that are being asserted that are that are wrong somehow that all these nine months of contacts in furtherance of the transaction somehow don't count and in particular i would just address in addition to that that string that i had had read into the record i ask you one question where the personal jurisdiction issue you know of a case in which one party claims that the forum court la yes no you know your honor they can't but i would say that that is not the analysis this court is bound to with regard to penna jurisdiction there's a distinction between cases that are brought under twelve ninety one which is relates to interlocutory orders and injunctions and nine u s c sixteen and i would point the court's attention to it as a third circuit case unless i'm mixing the six and third circuit up dupont in that dupont case they rightly looked at swint and what they were allowed to do in a very similar context to this where they were asked to be addressing personal jurisdiction and arbitron realty with the argument being just very similar to what the court raised they said one no that would be a violation in prochoice upon congress to be creating in effect a de facto rule that personal jurisdiction is immediately a belittle that is not what congress said and accordingly the dupont  said that outcome determinative ness of the personal jurisdiction question should not cause the court to circumvent what has been set forward in swit and very so your honor i think that addresses the question and you go back to the issue of the record it excerpt of record two twenty three through two twenty five there's a very telling document that touches on a lot of fronts relating to personal jurisdiction it reflects that negotiations have taken place that the contract in question relates to the duties that are created in the first and second amendment and it also notes that piaggio is sending in its people and and their cases the hindraf relies on the first as level three zero three third ten thirty nine and that's the case the actual statement by the court is that efficiency makes this make sense we need to do this now so we're not wasting our own time you know forget about the parties let's worry about the court and the second is thomas three zero nine and third twelve o three that talks about fairness he says is the case i mentioned earlier that the whole benefit of this arbitration clause is entirely lost even if we ahead and used efficiency as a basis for an intersection so there's no there's no rigid rules there's a discretionary test in terms of the arbitration you know i think the opposing counsel and perhaps i'm guilty of it to put the cart before the horse a little bit what we're really talking about here isn't that term that says was chosen by the parties we're looking at is what law should apply to this entire case at an issue before getting to the contract so it's not that we're saying but it is an issue to be assumed if they go through the most significant relation test i have no idea how idaho gets chosen perhaps florida perhaps delaware i could even maybe see texas what's your response to how since argument that this was not squarely so we think that these are inextricably intertwined because if i don't doesn't make sense from a jurisdictional perspective which we respectfully submit then there's no way i'd hope i would apply in any other event including for the arbitration agreement but we do say several times the opium brief this property state law needs to be selected before we can meaningfully get to the arbitration issue to begin with i have very little time i'll just one thing about the flight coordination that i started talking about beforehand the bristol myers case from the supreme court says any of these contacts to be meaningful have to be suit related they have to be specific to the actual case there are no claims anywhere in there seven counts have anything to do with flight pronation this is on the other hand as just as she was said in the pico versus west case these are incidental contacts at best these are not part of the original agreement they have just simply nothing to do with what they're moving on if they prove that we did coronation great or terrible or didn't do it at all it doesn't change