prejudice under the first file rule because that was the death knell of plaintiff's actions and deprived more than two hundred plaintiffs of any form for their claims that they've been poisoned by defendants toxic chemicals all the plaintiffs were trying to do in filing in at the table to vent to present their claims to a single u s district court judge white his was correct the dismissal with prejudice in this case was contrary to this court's prior precedent and to the general obligation of a federal court here are cases within its those cases are limited to instances where the first action was dismissed for jurisdictional reasons or where the suits were brought by different parties the principle is broader than that it's about preserving a playchess access to a for for example in the  at louisiana perception statute then by the time the plaintiffs filed in delaware there might not have been any legal action at all and their first filed rule never would have come into play so we think it's arbitrary to apply t back question which was the question of the receiving end of prescription statute the delaware action only gives the plaintiffs the first bite at the out on the question of whether they're entitled to proceed under the delaware statute of limitations the third response to for shopping is that other doctrines like abstention and preclusion law permit successive filings defendants could make the saying forum shopping objection when a plaintiff susan say loses on limitation grounds and then brings another successful search for a state with a lengthy statute of limitations is no different from the litigation strategy of countless plaintiffs who seek a form with a favorable substantive procedural rule or sympathetic local populations and the supreme court in unambiguous denial of certification under federal rule twenty three can stop trolling in this case there was no clear definitive if you to cation in fact there had been no there was no there was no federal motion in saturates preclude the delaware courts from applying their own statute of limitations there are no such worries in the cases those cases that have been cited in marking as involved people bringing repetitive claims under louisiana law and louisiana court fact along louisiana is that all doubts are construed against prescriptions and that the some of the plaintiff ought to be entitled to a form of some kind so that we think that the certainly there were no cases cited the murkiness proceeding involving the denial say about that but we're also amenable to the idea of letting that proceed in a separate appeal under the normal course but the strange thing for us about marking as is that of course is that the end yoder point is i mentioned the procedural history mentioned there had been no federal motion for certification in that case there's been one under texas law before the case was removed there was a texas state court and of course the texas state rules on certification are similar the federal but they're not the  see a little bit let me ask you this question is there any circumstance once the phones while the rule applies when dismissal with prejudice is appropriate we think so purpose is of course is to stays in transfers the right point is that dismissals with prejudice are would be fairly rare because it would be limited only in the instances where the plaintiffs clearly they had no right to reform and ought points or what kind of what kind of rule do we craft here counselor dealing with an abuse of discretion standard if in fact dismissal is an abuse of discretion in this type of the situation  that the action should be stayed as it was dismissed right so so the discretion part under the first filed role we think comes in pertains to the second courts discretion to proceed with the action rob the first action is pending and then it would not be a permissive will exercise of discretion to dismiss with prejudice unless there was some other legal basis for a shooter cotta jurisdiction yes that hypothetical it was just that there was a second action filed with the hope of getting a certain judge on the wheel or something and if it was a completely redundant one play if you want to play the hypothetical fine but i'm sorry i'm trying to figure out is there an instance where it's appropriate to dismiss with prejudice because it's apparent to the reviewing court that the forum shopping was not what was in permissible there hav that if they did it's the same statute of limitations i think only if there has also been a choice of raw determination is unlike the thompson trucking case where the plaintiffs in thomson trucking said we're all in louisiana we think our cl governed by reason in the law and that it's our form the plaintiffs ordinarily are allowed to choose a state with a longer want to patients or if it's not longer in your hypothetical then you would be right it's not wanted that they then they wouldn't do it but in that defendant action with with everybody has contacts in numerous states and figuring out which state has the right jurisdiction and venue is not simple that the chemical the path that was shipped from louisiana there are a lot of facilities there a lot of  of counsel in other words are we to say it's sufficient if there is some plausible basis to think there is uncertainty about jurisdiction worry a good faith basis to question statute of limitations  his position as i understand it is when the when there was some when there is no doubt about the viability of the plaintiff's case in the second form then it can be dismissed with prejudice when it's dead on arrival because of a cute a cot or something else if i could ask you then who is responsibility is it to make that argument is that a party who's seeking were void the dismissal without prejudice to convince the district quirk that there is a concrete risk that the merits in the prejudice should be warranted let's take it in a slightly different way should there be a circumstance where a dismissal with prejudice is inappropriate if the parties seeking to avoid dismissal with prejudice shows as a test that we might adopt where does that come into whether or not a judge's discretion is where the district court will always have wide discretion in staying and transferring and i think that is the kind of docket factor have here and what should we look to in terms of case management and dog control is waiting in the decision making process well i think because transfer and stay  go and file in texas and louisiana and california and the multiple hawaii and multiple jurisdictions you have available at some point for defendants to be defending in all of those jurisdictions even to and i don't think the court's opinion needs to define the outer limits of of the vexatious problem i don't think it or it's present at all in this case and we don't think the court would need to close the door on what would happen in extreme case  dissent are in agreement that the first filed rule applies here i would like to address my initial comment very odd to judge andrew's exercise of his discretion in dismissing these claims with prejudice under the first first circuits decision the delaware princeton court said she didn't need to do that you've had your day in court that's all you get now please continue to claim abuse of discretion here despite the fact that we have six seven reasonable jurors to reach the same conclusion that gender is reached and they do so i would submit on another faulty premises you know address four of them briefly if i can the first faulty premise is the statute of limitations of whether or not the one year or the two year statute matters this is a case where everybody is fifteen years too late for their timely and the issue of whether or not they're fifteen years too late is a least my question from reviewing the authorities is is the same thing to filing both cases is not at all usually it is a rush to the court house because the different parties have decided they prefer differ forum situation so i don't think that part's typical i don't think elsewhere i will the issue is that they were going to have to read again and when to be able to maintain their claims second bite at the apple here when the point is never really had the opportunity in the first instance to have the substance of his claims  sure the court was aware that the plaintiffs told judge andrew is in there answering grief at eighteen but no nine that it was relevant to whether he dismissed with or without prejudice because there statute in delaware w wasteful but you also have to consider the other circumstance there in louisiana things are not going well they dismiss now that's a little bit hard to do in federal court not so hard to do in certain states courts but in the end it let's assume they successfully principles about access to the chords the jurisdictional bar and whether we want plaintiffs to have the opportunity for a hearing on the merits of their illegal always been seen as separate in that regard versus tasha limitations in any other procedural defect any other firm defense because it prevents you from having the forum here the pla limitations and i don't think that your limitations is unique in terms of something you would do over into the same category as jurisdiction because there are lots of other ways in which you can lose your right to have your claim aspect of almost always being her right in front there isn't that a she was going to get resolved and people are going to know they need to go somewhere else with their claims stack just like a lot of for the defense is often can be heard a trial you have to follow the rules and if you for seizure reason or otherwise you lose a lot of please don't get to where they feel would be the merits of their claims because they represent various affirmative defenses but the court under on the merits of the claim from your point of some of your point of view the only time there could be a dismissal without prejudice is when there's a question of jurisdiction in the first court applicable to let the pain is really gate in delaware that they already litigated in louisiana and i think to go back to one of the questions from the corps earlier even if they are at a different statute of limitations would that be of great importance and or judge and angers dismiss this case without with prejudice i don't think they should judge injuries exceptional circumstances your honor what they admitted to him quite freely intertwined would play into that yes i mean whether or not it's amounts to piercing the corporate veil or they could be some sort of you know corporate supervision of the subsidiaries business what we do know is that the two entities are intertwined and  at minimum there should be discovery on that i mean direct doesn't close the door completely it says that place of corporation and prince or place of business are the primary ways in which a corporation is at home in a certain place but  ruling yes so if we are to revisit that if we disagree with the district court and those issues come back and play right yes and the district court also did not address twenty u s c sixteen thirty one provides that just record first instance yes your honor yes that's correct and i think some of those issues would be open just i just wanted to make a couple of points in a bottle which were first is that our friends on the other side seem to say that the that principle that distinction doesn't withstand scrutiny first because as the chief judge mentioned there the principals operate in the same way they're both ways of getting into court they both implicate the fundamental access to a forum the right to access to a forum that is the ultimate right that we're trying to vindicate here and it also doesn't match up with the cases i mean i quoted from the berger case the fifth circuit which in turn goes quoting the moore's treatise and the more st it's mentions both personal jurisdiction and statute of limitations as the reasons that we dismissal with prejudice would be inappropriate in other words if there's any uncertainty about either issue of dismissal with prejudice is inappropriate the central state's case from the seventh circuit is not a case involving a personal jurisdiction uncertainty it just but the first to file cases and be this the rule against dismissal with prejudice is not limited to uncertainty about personal jurisdiction and the other point i wanted to make on the bottle is has an equitable component and extinguishing the right to a slug of plaintiffs only for one is a kind of extraordinary and equitable circumstance which would justify an exception in fact these three d and a supreme court in one thousand seventy two issued a landmark ruling in a case called posture against breaux which said under louisiana jurisprudence prescriptions statutes are strictly construed and if two permissible constructions that is adopted which favors me taining rather than barring the action what are your exceptional circumstances or it's only form it's only chance you have any claim and this outer space that my friend on the other side mentioned is in doubt is it because it's involved a louisiana malpractise claim the same claim under louisiana law twice in louisiana state court it didn't capture the front primary feature of this case which is the louisiana courts were say nothing about the application of the delaware statute of limitations in other words the fact that our claim might be barred