welcome to our court at the outset judge newsome and i wanted to welcome to our court today and this week judge buck low from the middle district of florida we're delighted to have her sitting with us she brings a world of experience and has sat with great distinction for many years on the middle district of florida believe very much appreciate her help with our caseload today the second observation for you before we before we begin as you proceed with your arguments you can safely assume that we've had a chance to fully review the briefs in the case of the record excerpts and in many instances we've had a chance to go back and review the underlying record as well so feel free to really go to the to the heart of your argument third and the last observation for those of you who may not be familiar with our timing and writing system you'll note that there is a clock that will give you an idea of how much time you have left you've said if you have the power and how much time you want to reserve for your reply argument we've got a lighting system green means go yellow is a to win a two minute warning and red means your time is up so we'd be much appreciative when you see the red light go on if you could bring your remarks to a conclusion one of my colleagues is fond of saying the red light is not aspirational so we be much appreciative if you'd be mindful of the time that doesn't mean if you're in the middle of a sentence you've got to stop but just to wrap it up when you see the the red light go on with that will begin with our first case which is target media partners versus specialty marketing corp and we'll begin with the  court good morning my name is randy james and i represent target media partners and leader in this appeal the district court dismissed my client's claims based on the worker feldman doctrine and  we believe that that the court did incorrectly as a background target media publish is free magazines were to distribute it throughout the country it's basically advertising  parties have a long history with each other going back to two thousand and two when target media partners operating company l l c was sued by specialty marketing in this case in a separate case here seven years after the relationship ended and four years after there was an underlying judgement and callan county specialty marketing mailed an anonymous letter to my advertising my clients advertisers  in that specialty marketing clue did a bullet point list of nine things that they provide it and in doing so when you look at number nine and ten it included a cd disc with two hundred fifty pictures and it says brand new books thrown away without being delivered most of the books are target media books and interesting inside of that the were publications in two thousand and ten not going back to zero two an zero six and he concluded the letter which was sent anonymously it is my belief that you and everyone else who has any business or personal dealings with target media partners their owners and officers need to know this documented trial proven frog a by them so that much with respect to the first sentence of the last paragraph you would concede refers to the specialty vs target suit yesterday while proven right yes or ok so keep keep going because i think there's you know an interesting discussion to be had about sentences one two and three in that final pa h yes sir all of which have been upheld by the alabama supreme court further it is my belief that many others have been and continue to be victims of this fraud the district court in this case ruled that the terms have been and continue to be victims of this fraud related to the two thousand and two to two thousand and six relationship between the parties but in this case the letter was sent to our advertisers who are not publishers who are not sending out these magazines as our major source of revenue and so we filed suit for fraud and allowable per se against specialty marketing in this case but but much of what you much of what was sent were the trial testimony of the judgment that kind of thing right well part of it isn't and this this case had sort of a unique procedural history especially marking waived their twelve b six motions and so when they when it came back with the first report recommendation the cork allowed us to go forward then it was reviewed by a judge battery who sent a in her order requested that we look at this based on work or feldman and it came back but we've not gotten into what all the contents of those letters that letter contains many of the things in here were not part of the trauma for instance if you look at number seven gary you never testified the truck and i have a unique history in here and some say i'm too close to the case because i've had this case now for look at going forward was whether or not my client's claims would nullify the state court judgment so let me ask you a question about our post exxon rico feldman cases me if you read them i read nicholson and i think this is an exxon decision sort of very narrowly construing a doctrine you read casale and you think this seems pretty exxon to me it does and so what we what we do with those i mean casale came out the day before nicholson ordinarily this court has a rule that the the first you know sort of decision on point controls the latter right what do we do with those two well i think you have to go back to the saudi arabia case and what the supreme court said and i read it which i think is is right on point and it says the worker fellman drucker and we hold today this is in saudi arabia is confined to cases of the can from which the doctrine acquired its name cases brought by a state court losers complaining of injuries caused by a state court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments and hear my client's claims are not seeking to undermine the judgment that judgment is set what they're what they're complaining about are these new tort says that when we look to divine the meaning of in excess inextricably intertwined we've defined it to mean those claims that if successful would effectively nala fi the state court judge that's what he's saying because sound yes or would any determination about defamation nala fi affectively the state court judgement about breach no sir could not tell me why not well because the labile occurred four years later it has absolutely nothing to do with what occurred during the trial it's completely unrelated understand that there were facts and a judgment entered in the underlying case but what was done after has no relation to it it could not notify well the letters contents in fact report on the state court trial and the state beliefs regarding the started in the sense that it amounts to a commentary drawn from that trial it does it's bound together at least in that way it is but it couldn't overturn that judgment you could find for my client a jury could find for m allowable and misrepresentation and it would not affect the judgment that was entered and so do you it sounds to me like you've got sort of two arguments the one is under a proper reading of exxon and even our post exxon cases the standard is not really inextricably intertwined in a loose sense but instead sort of what the exxon courts you know the kinds of cases from which the doctrine got its name and then separately you say even under an inextricable intertwined statement standard as it existed pre x on i win because it wouldn't necessarily know if the underlying judgment yes or ok and in this case what what i think the district court did was they went to the merits when they when they looked at what the letter said instead of addressing simply the the elements of work or feldman they went to the merits o what the letter contained and that's an issue that we can decide later on summary judgment or some other point you know will you will you face preclusion problems even if you get beyond reproach elman i was curious about and may or may very well and i don't think  feldman should be used as as an issue preclusion to which is sort of what happened here can i ask you just a factual question and it sounds like you're the right guy to ask since you've been with the case the whole time i was curious what what was the subject of your circuit to the u s supreme court when you lost the fraud claim i just i didn't know what the federal issue would be that you would take the u s supreme court yes or it was on punitive damages against the individual go we appealed that for the company as well but it was related mainly to the individual in this case got it who's also party also party here is referred to as an officer in some and the clerk or merely if we could leave you some time that would be wonderful so when you look at this case i believe saudi arabia the exxon mobile saudi arabia cases on all fours here there may be another opportunity now on the road for especially marketing to move for summ judgment but here we're looking solely did my clients file a claim for which they could recover and that claim would not notify the judgment here thank you  i think one thing that distinguishes this case and what the state court found from what you might see in a lot of other cases is the extreme detail that you see in both the state court that is the circuit court which is the local trial court in alabama and the supreme court twice reviewing this and going into what you have to call agonizing detail in its opinions the significance of that for the case that we're here on today is that everything that was presented or sent to the people to to customers of a subsidiary was in detail covered in the state court right but here's the problem i'm having and you can help me with it it would have seemed to me that the timing of the death of the family very speech means that it couldn't effectively be grounds for a wrecker feldman bar we said long before exxon mobil's limitation that rucka feldman would not be a bar to jurisdiction where quote an issue did not figure and could not reasonably have figured in the state court's decision we said that it would be the aren't going back to one thousand nine hundred eighty three and it seemed to me that in the facts before us you have an alabama jury trial they render a verdict on breach of cro proper breach of contract promissory proj and fraudulent misrepresentation verdicts as against target media as well as a breach of contract against specialty marketing in two thousand and ten the supreme court of alabama upholds those verdicts in two thousand and thirteen and here the complaint alleging defamation in the letter was sent by the everybody agrees in march of two thousand and fourteen and so the difficulty i'm having understanding is how rockefeller then would apply here in this case to bar a claim alleged defamation that doesn't arise until after everything in the state court is complete one of my messing you know out of the the magistrate judge and the district judge found that everything that was claimed to be defamation had already been judicially determined to be a fact in the in the old case and  the difficulty with that i think and i don't want to interrupt your thoughts i mean you should complete it but the difficulty with that i think in maybe in responding you can sort of pick up the thread of where you were going is that when your opponent was reading from exxon i actually thought he was going to read a different passage which seems to me even more closely on point here where the court says if a federal plaintiffs present some independent claim albeit one that denies a legal conclusion that the state court has reached in a case which he was a party then there is jurisdiction and state law determines whether the defendant prevails under the principles of preclusion doesn't that sound like this case there is an independent claim it's a libel claim even if it does deny a legal conclusion that the state court has reached isn't that what happened here and in fact to some extent yes your honor i mean to some extent it's i think of race judicata doctrine that say you know that sounds like to me it's made up i mean that's what i worry about it sounds like it's made up it's like a turbo charged preclusion doctrine that has now been dressed in jurisdictional terms i think that may be maybe exactly what your answer ought to be that rockefeller that is made up in the sense that the courts made it up and i can't deny that they sort of made that up as and you know those are two case names aren't really related to anything else right but the theory made sense because at the end of the day you didn't want the inferior federal courts the district and circuit courts of the land playing a role where they were reviewing the highest court judgments of the state court absent unusual circumstances like federal hay b s and things things like that but the problem that i'm having and perhaps you can address for me is understanding how the state court could have possibly even adjudicated the defamation claim if it did not by your own concession arise until four years after that case was presented to a jury in alabama i think what they were saying what the two lower courts were saying is that it's the same thing the court defamation claim under the laws of libel and slander the jury asked and instructed about defamation of course not you are well but isn't that the heart of the problem here that they never had occasion to rule on defamation they were never presented with defamation and they answered questions about breach of contract and fraud period and now you want to take the new claim and say somehow it undermines to the point of no if occasion the prior court judgment and i guess the trouble i'm having is i don't understand the matter how this defamation case plays out how it would undermine the initial determination by alabama courts the well the entire claim of of defamation is a report of the state court proceeding and what started this was i think me addressing the question and to the either the magistrate or the district court imagine it was the magistrate that there was a confidentiality order in the circuit court and in other words a circuit court had taken that on on the motion of the target media and so this is what this is what led the judges into in the lower courts into looking at this issue in addition to just the facts of the basically reporting what happened in the state court and so the issue that were is was is if this if they wanted this to be confidential they had their forum to raise that before the local circuit judge where the case had been after all the appeals all the way up to the u s supreme court it come back down to a trial judge the parties have agreed to this confidentiality order nobody's ever claimed that this report breach the confidentiality order the confidentiality order related to some other things like post judgment  discovery that's what that's what i think started this and pushed us into the position where the district court looks at this and the magistrate in the first instance looks at this and says this is the same stuff that sense it would because basically what is being done in other words if they came and said this is something entirely different they said my dog was are ugly or something like that something that was not adjudicated in the misrepresentation i don't see how the answer to the second question would nala five the judgment the state court rendered in the first well it certainly wouldn't make it void in the strictest sense it would but to successfully pursue the libel action there the facts determined by the lower court would have to be determined second suit can succeed only to the extent that the first judgment was early fact found in the first judgment was wrong is that right yes and i guess my question in part is whether that what i'll call a looser understanding of inextricably intertwined can six can survive exxon can you explain to me why you think that can survive exxon well i think late in the exxon case the court was saying that the  if the stake or and its decision is effectively undone or has to be in order to prevail in the federal case then that's undoing what the long proceedings in the state court determined but certainly not an un doing in the sense of rooker itself right i mean rooker was an outrageous example of this where somebody marches into federal district court and says i want you to review the decision of the state supreme court and reverse it or effectively so it's not that i mean this is maybe just marcus's point it's not a nullification in the strict sense you're just saying it's sort of spatial or philosophical nullification in the sense that contradicts some earlier finding that was made and i think this is what that's why i go back to write a miller's talking about this in the first place and the way i would have said this years ago when i was in law school before a change  terminology i was that all these things are a student and that would have been my answer and i think that's in effect what the lower courts were saying they were saying and that's what the right but it seems to me the difficulty is what we're looking at is the state court judgment is the judgment of the state court nala fide by virtue of one resolution of the subsequent claim and i don't see how the judgement would so effectively be nala fide as to amounting to asking a federal court an inferior federal court to review the work of the the alabama courts you can follow what you follow what i'm do you honor and i understand i guess there might be a very narrow rooker feldman doctrine that would only be  know like you know i was saying a director of our soul of it isn't a judgment what we have to focus on certainly post tax on are we looking at the judgment of the state court and asking whether the federal court is being required to affectively alter that judgment vacate that judgment reverse that judgment and i don't see how that could happen standard to answer a different question about a different claim not right well as my understand that's what the record feldman doctrine was was trying to do is keep like in this case here we've got a state court losers as they refer to it that wants to have the federal courts undo the thing and they're right and i've just tried what i'm trying to do is to end it literally sort  precludes of analysis on the want to and from recruit feldmann analysis on the other and while they tend to overlap there's a distinction between what we're talking about in work with feldman and what we're go back and consider whether or not there is a jurisdictional bar arising under the doctrine of work or feldman not whether there was preclusion that it that wasn't it was not  but that that's not the issue that was perfected and was presented to us on appeal was it only to the extent that that's what roker fellman is only to the extent that it's an issue  donna briefly my partner's demi when you don't have much to say you should probably sit down but the confidentiality order was a post judgment issue about producing certain financial statements of privately held companies and that was the purpose of that confidentiality or the issues of related issue preclusion they can be pled we can argue those later so you agree that they have they still have the preclusion base summary judgment motion in the yeah i mean that that's a separate issue in this case but but those are issues for down the road the issue here is did the district court have subject matter jurisdiction to entertain my client's claims and we think based on exxon mobil versus saudi arabia that they clearly did at this stage thank you ana thank you very much thank you both and we'll proceed to the next case