amendment policy but it goes to a more fundamental policy which is that cases should be decided on their merits when possible unless there's a good reason not to do that and there was no good reason in  amendment should be granted unless it is certain that amendment would be futile in this case we have just the opposite we know that allowing the amendment in this case with submitted along with the motion for reconsideration the district court erred by disregarding the liberal policy of me fifteen regarding a long line of cases which was especially highlighted in the running case in the seventh circuit and in the united states supreme court should be considered the second major grounds for reversal that the court misinterpreted this contract as a contract for goods predominantly for goods is as opposed to predominantly process and also more importantly i think to to have figured out how to make this product this product didn't exist until it was made and and at the time of this contract it didn't exist what we had was blueprints what we had were specifications and it was arrow's job to see if they could create this into a viable product and then the kind of the contract is very specific that if if the product is acceptable then there will be a series then then then there may or may not be secondary parent tracks which are the purchase order and and in this case in the  did you hear complaints about the product when they were right for you but at least that's what that's what you paid for that's correct i mean certainly the overall the purpose of hiring prices total prices delivery points all of those were in a separate contract and those were absent from this contract which is the distinction between the services portion of it and then if there is an order then there's an order for goods which which they would comply with if they were ordered to go back to that if there's no order do you or many money not for the service you know i mean i think  it's not unusual i don't think in many businesses to to put together a proposal to do some initial work to do some initial drafting of something you know initial plans for example to show that numerous kinds of business relationships where you do some services and you know you don't do it with an expectation of being paid at that point as a sara lee but if you're betting on the come  of motion and speed know and that kind of stuff so that's the kind of thing and i think when we approach aero so we hope that there was a good product there and we did we had a design for a product but we didn't know if it was going to be entirely viable yet and that's why we went to this company that profess to be an expert in manufacturing these kinds of products and overseeing their development to see can you make you know before we spend a lot of money on this is that even a viable product and they said it was they they first they presented a number of models i guess over the over a period of years really  and we decided to order them there was only after ordering them and having and selling them and having them returned by the public failures that we determined with bad goods which failed and cost us money it also basically destroyed the entire business and including for example the for the first mover opportunity there you know we  fraud and and we fell within those limitations periods and you know and but unfortunately the court missed understood i believe or misread our original complaint which  clear in that in one sense i think there are many of that a lot of this product and a lot of these services were not provide until two thousand and thirteen which made the claims decided under new york law restated many cases under new york law in which pre contract misrepresentations are independently viable claims their independent of the of the contract and that i case here we allege that the fraud and the negligence misrepresentation and the tort claims preceded the sales preceded the entry into the contract that they revolved around arrows misrepresentation of its ability and its experience of making these kinds of things and its expertise which relied upon and that misled us into doing business for products that new would order new spend now alleges that those products were defective but the allegations come to light a new spin attempts several and runs around the four year statute of limitations that applies here and i want to address three of those today appropriate to do so but there's a threshold issue that newstand was unable to get past its clear in runyon which new spend cited for the first time in its reply brief and in consolidates connected which came down six months after runyan that plaintiff is able to put an amendment before the court if there is already been a judgment the plaintiff needs to get that judgment reopened either through all fifty nine or route sixty so here we have a rule fifty nine motion and that will fifty nine motion didn't do what needed to be done it raises the same arguments that the district court considered and rejected and it didn't raise any newly discovered evidence counsel for new spin mentions that there is a reference to one sale in two thousand and thirteen that might  so you're saying that the court would have first had to reconsider and granted the motion to reconsider and then address the motion to amend that's exactly right your honor and that's what i said that that would require the court to do that that's the consider the amended complaint lawak while it is reviewing the rule fifty nine but in this case the motion for reconsideration under rule fifty nine just has four sentences tacked on at the end that say hey please let us amend but there's no argument about say the court in its motion for reconsideration here's how we're going to fix these problems with an amendment and here's why you should grant reconsideration on that basis that instead just a short paragraph at the end of its motion for reconsideration says oh by the way we'd like won't rehash them here unless your honor your honour's have questions about those but if the court has any doubt that about the district court's conclusion that this was a sale of goods contract i want to focus on three things first newstand who said that this is a contract and this cannot be a contract for the sale of goods because the contract doesn't identify the goods or specify the number or discuss the delivery protocols for the goods but that argument disregards several key provisions of the agreement first section one point one the contract that era would perform no work and deliver no products until it received a purchase order the purchase orders to kick off the process of performance of the contract second in section four point one which i think judge blom had mentioned purchase orders would identify the order goods the quantity their price and their delivery details and then lastly in section eight point six and in this is important the contract treats purchase orders as part of the contract itself in the middle of that paragraph section eight point six degree meant states will quote when interpret ing this agreement precedence will be given to the respective parts in the following order and quote then it goes on to list three parts the agreement itself exhibits to the agreement and then third quoting questions of the purchase orders that are not preprinted and so the purchase orders are expressly integrated into the contract itself agree that if plaintiff had originally alleged that the breach of contract was based on the two thousand and thirteen purchase order that it would have been time like your honor if that twenty thirteen delivery of contract under section eight point six after supper purchase orders for a contract that's right your honor and i acknowledged that may sound like there's a tension there but rule fifteen doesn't say that any claim under a particular contract is going to be able to relate back to the initial filing of a brooch contract claim instead it says we need to look at the transaction or currents that issue in here i think each breach is very clearly a separate track each alleged breach is a separate transaction or occurrence because it a separate delivery under a separate purchase order or separate products were it otherwise as soon as you filed one breach of contract action you could relate back all sorts of things that get brought down the line and i don't think that that's what will fifteen contemplate the second thing i want to say about the contract is that the only thing delivered here was finished goods whatever services errol performed in developing and contract here was a services agreement i think that we would be effectively writing off new york's u c c take an example imagine a coffee wholesaler he's got to go overseas and source coffee beans then he's got to take those beans and ship them back to the united states roasted beans make grind the beans forms a lot of services to get those beans here and those services are not going to render his subsequent sale of those coffee beans to some purchaser part of  services agreement that's going to be sealed goods and i don't think that changes if the purchaser says to the coffee bean wholesaler hey we've got certain specifications we want particular beings from columbia or we want them roasted in a certain way the specifications those extra services don't turn that sale of coffee beans into a services agreement but that's exactly what nuisance reading of the contract here is trying to do you spin even go so far as to say that arrows ongoing warranty obligations under the agreement that those are services that make this a service agreement every sale of goods contract includes some services and warranties and so if we were to take that reading of the agreements that newsprint proposes we would effect about the product that was delivered and that new spend then later said these products are defective new spending payoffs for anything else except for products and didn't submit purchase orders for anything other than products and that's why consistently said that the first step has to be a successful rule thirty nine motion until you until you get past the judgment you're not going to be able to amend in the follows a thirty five year line of seconds a seventh so far as to say you know if there is not a valid rule fifty nine motion the district court doesn't even have to look at the amended complaint why shouldn't the district court before getting to all fifty nine from the district court first ruled on the twel two on that and that's right your honor in the normal course the seventh circuit says that amendment should or should be granted in that city are permitted in that situation here we're dealing with a contract and the contract will not change based on the amendment nor will  of delivery change based on the amendment we have a very clear document that speaks for itself as a matter of law and so no change to the pleadings is going to alter that and i think the district court perceived that what was before it couldn't really here it was alleged outside of the four year statute of limitations it wasn't timely moreover and i think this is important just because that one delivery might have been timely that wouldn't turn the other breaches into timely bridge right these are these are separate instances if you could allege one timely breach and with that timely breach bring in a whole slew of otherwise untimely breach of this that's a separate question what the confines of complaint would have looked like versus whether or not in this court has said that when you know a fact and you don't allege it and it's material to to whether or not you're going to have a case that's going to be a problem for you that the court is going to be skeptical of adding that new fact that was within your possession time in my remaining time i want to hit a couple of points that were raised in the reply brief that we haven't had a chance to respond to new spin sites for the first time a sixth circuit case wells versus ten x manufacturing forty year old precedent that case distinguishable from this one because they're the purchaser gives the manufacturer the raw materials in the design and all it asks manufacture to do so by the simply services here aero source materials eroded the design work aram put the products together and then it delivered them and all that new spin provided was payment for it and lastly i want to touch on waiver has been says that the arguments regarding negligent misrepresentation in the special relationship are w goods there would have been no need for this contract for the services contract at all we could have bought something from a log and just said place our orders and that would be it that's not the case because this product didn't even exist yet it was their job  formulate it and that's where they fell down because they formulated products which ultimately certainly resulted in the shipping bad products but it was the failure of the manufacturing process in the management of that pro modification of a judgment where necessary to correct manifest errors of law or fact and i think we pointed that out in the motion to for reconsideration that they were mistakes in terms of what of the contract as well as