and we have one final appeal schedule for argument this morning atlanta wrote a molding versus lhota molding andrew jacob tuck is here for and the nd is the court finds that it has jurisdiction which we believe it should whether the court should order the case directly to arbitration right now as my client see i wrote a molding argues or instead send it back to judge thrash for further proceedings on a waiver issue as atlanta wrote a molding request to get into the jurisdiction issue i just walk through how this played out of the district court and why that supports federal here i wrote i'm olding since this dispute arose it's a dispute about me could you just tell me why you didn't include that in the motion to dismiss and simply say the reply brief we had a much more discussion i think the two paragraphs argument is about our opening  order refusing to stay under section three of the section four it seems to me that we ought to be looking at the order and so if i look at the order document twenty three dollars the initial order not be amended or i don't care about the amended order but the initial order where in that order is there a denial of either a motion to stay or a motion to compel name which i think is a very reasonable interpretation given the underlying motions but i mean why don't we why are we focusing on the water itself that's what the statute requires is that the appeal comes from the order let's look at what the order  again i wrote a moving are going to be an impossible position because judge trash can just ignore their request for arbitration and avoid appeal and force us to go into costly federal court discovery when we're actually entitled to arbitrate well i guess i guess i have two things to say about that one is i don't think that that is really remotely what happened here i think the judge stresses responding quite reasonably to the paper he put before him but to if that were to happen if we have district court judges just that that's fair and i anticipate that if this case goes back down we will file such a possibly not a reconsideration but just a direct motion to request arbitration and we'll deal with all the waiver fights that are requested but for purposes of this anything about the motion for a stay or arbitration and we also look at the district court's order why shouldn't we adopt the we don't have very much in the th circuit about what you need court's decision in time read the piece of conrad that's that's really novel as it says you have to move just on arbitration only on arbitration you can't move to dismiss and have arbitration and this court already  telecom italia that it's perfectly appropriate to have a twelve the six motion that also request arbitration and then cruz the cingular wireless already has endorsed bringing a motion to dismiss and that's more like the case dismiss a defendant who doesn't have a claim is moving to dismiss the claim it's been brought against them and that can be treated as encompassing the lesser alternative remedy of the state in particular here where we actually did raise a request to stay in under section sixteen i think you've already analyzed closely the caption in this case and you brought up the th circuit choose to step approach which is what the appellate would urge this court to adopt that essential attributes test beyond of mandatory arbitration and quite frankly looking over both the caption the motion page contents itself and the twenty five page memorandum makes clear that i wrote a moving never intended to pursue arbitration they simply so properly properly do not consider that argument was reason reply we would ask the court also discredit that argument so the this is just missed and let me ask you a quick question about just sort of the the standard the methodology the test by which we go arbitration motion was raised so in those situations we would ask the court to take the further step if it's not satisfy by reviewing the order itself of taking a look at what the motion papers actually call for so for instance in a circumstance where i district court thought it had before it we should just stop there even if the motion said just it just said granted or denied i believe that you could stop there the only issue we had is when we have this appeal where attributes which clearly show that there was no intention of invoking arbitration or pursuing arbitration beyond seeking this outright dismissal with prejudice declining in dismissing this appeal we would ask the court to consider the implicit waiver argument that was set forth at the district court level excuse me and so to the extent that this court believes that since gone on appeal and has issued a decision in earlier part of this year but the court there in that case clearly noted that the filing of a twelve b six motion seeking a judgment on the merits constituted an act inconsistent stay of any action under section three so you get where did you make a motion to stay or to compel by filing a motion to dismiss that includes the argument that the whole tape should be dismissed because there's nothing left here text required say something about the relief that you're requesting from the court the ultimate relief we were requesting from the court was to dismiss the entire case as this court the court if it should rule on these issues in the spirit of moses h count for the past decade these kinds of issues should not be resolved on hyper technicality and should be resolved in favor of to hold a party to a standard that hasn't been addressed by this court before when multiple circuits have allowed motion to dismiss to be treated as encompassing and a stay request