district court erred in dismissing six actions under the first file rule because the plaintiffs involved had filed substantially identical claims in louisiana a year prior our position is that the dock legal doctrine of race judicata or preclusion is the appropriate legal framework for resolving this case not the first filed role because the cases eventually were dismissed by the louisiana court there's also court to do that work or this court could decide the legal question of whether there was a cause and some just when the court got it wrong because the first filed rule didn't apply to cases which were not simultaneously pending just to be clear the very first order issued by the district court did occur at a time when the louisiana cases were still pending subsequent that it was in august of two thousand and twelve and september the destroy the louisiana cases were dismissed and then we moved for then all then there were three more additional orders this six consolidated action so the very first order did issue when there was a pending case in identical actions have to be you know in time and space proceeding at exactly the same time the isn't the law supportive of the notion that they have to be  materially identical at a point in time and if that is so then you may apply the first filed well the governing cases the e e o c decision by this court in one nine hundred eighty eight and it applied if i recall the flexible rule of judicial administration rather than any categorical approach no court to our knowledge certainly not this court but you can find any court that has said we will apply the first filed role in a way where the second act you're under the under the i'm trying to understand the framework on which are applying the first trial all right because there is a point in time when they obviously are both outstanding litigations right you have the same set of plaintiffs and the same to the defendants i don't need to go through all the rest so how long do they have to the existing in equipoise for you to apply the first twelve will i would imagine that once filed in eleven once filed and twelve for every day that they over while they are technically subject to the application of the first rule what what happens the takes out of that row well it was when the orders were issued the just when the district court resolves the the the motion to dismiss the there were no pending cases there were no they were not judgments as this court observed you know that case was a case where the university of pennsylvania filed suit in the district of columbia district court saying that the statute was unconstitutional then he came to fence in eastern just the first viral didn't apply even though there were anticipatory filings even though there was overlapping every day the cases were in both courts this court said you can't look at he can't take a rigid mechanical approach you have to say what's the sensible cases there was no i think that's a different kind of point i think well it is a different kind of point but it also reflects for example a district court the district court in delaware could simply have stayed the cases while the louisiana action was pending and remedy i don't mean to i don't mean to consider i don't mean to abandon that point i share the concern that the that frankly that the district the district court below did not apply the first file for all correctly because it should have some recent cases it seems to first in louisiana and it would seem to me that the first rule of law is now what i'm going to decide on the basis of that is a different matter well that's another way of putting it that's probably a better the for example the district court said but yes there's another batch of cases that came after correct not necessarily finally but they were decided correctly after louisiana filed its decision dismissing were prescription forum the defendant's contact with delorme nine of the defendants or dollar company a lot of the activities it occurred here the all of those reasons would have been good reasons under e e o c to say yes the delaware action should have been permitted to proceed and that the so you can either you can either say it i think your honor put it a better way that is if the first file rules applied it was it was error for the district court to dismiss the cases  particularly after the louisiana cases had been dismissed do you have a first wrong rule situation when the louisiana district court lead its decision regarding the statute of limitations do we have a first file continue to hold my delaware cases in advance of course all of that makes perfect sense we're just complaining that it's with the death now of the delaware litigation when the when it wouldn't when when once the louisiana cases were  just just a quick yes or no will hopefully so your understanding of the first well rule in the situation like this would be it would only have applied if at the time that someone mo well these are friends on the other side have a different view they say louisiana law governs but they can't cite a single louisiana case involving that context all the cases they cite except for thompson trucking which i can discuss separately but all the rest of their cases involve a pla louisiana statute of limitation he's going to decide the race judicata question if we we think we're right on we think they're not barred because the louisiana court simply decided they were part of the louisiana prescription statute not that they were part of the delaware that's not binding on all of those cases that were originally filed no the all the louisiana court held was that the louisiana prescription prescript and statute are the claim not that they were barred under delaware law you will  louisiana supreme court granted review in a couple of class action cases called duckworth and quinn there was a decision that had to be made about whether to seek a back up because the plaintiffs needed a forum to have their claims or that it then basically as the dollar supreme court has found have been sterilized or neutered by the defense form shopping for those two decades so i admit that was a tough call to make but again i think under evo see the rule has always been and do what makes sense from a judicial and conclude that his dismissal of this case on personal grounds was an abuse of discretion i believe in doing so you would be the only circuit court to ever have reversed a district court on those grounds it's a very broad degree of discretion that a district given in the circumstances where the claims and the parties are identical to a first filed case which is exactly what we have here as a practical matter i think what would happen if for some reason you declined not true in our favor and race judicata grounds would worthington versus mayor if you're familiar with yes yes or no christian issue one i wanted to point out was her disposition of cases which argued the first line rule her disposition was interesting because what she did was she dismissed cases with the right to have those cases reopened were they to remain dismissed in the other form and also she trist re cases also were given giving the point of suing the right to reopen those cases if those cases were complete of form to which they were sent so when you say that we would be reversing the stricter cheere he had apparently other options to exercise which he did not the district court would have as any district court judge is entitle to either state the actions that were in front of him hargus myth them and that's the same choice the judge face in the worthington case that you're describing he was well within his discretion and in fact the only sensible result was to do exactly what he did which was to dismiss them here's why it was very clear that what the plaintiffs did here what the f palance did here was to form shop when they filed the cases in the delaware district court they vote a letter to the judge in the eastern district of louisiana it's  reprinted at page eight to sixteen of the appendix and what the plan to said to the district court judge was that they wanted to keep two forms open simultaneously to see in which one they fared better that is precisely part of what the first child was intended to preclude what they said to the louisiana district court was that if the wheezy and the supreme court ruled in their favor on the prescription the statute of limitations issue then plaintiffs would elect to proceed in louisiana because the prescription issue would have been conclusively determined but if this court meaning the eastern district of louisiana and the louisiana supreme court determine that the cases are in fact prescribed then plaintiffs can continue to pursue the merits of their clients in delaware pla aware and requested that the action be stayed and the defendants might have opposed that but they did not do that instead they attempted to avail themselves simultaneously of both for and so it would have grown bored of them perform shopping to do what you're suggesting and so judge andrews was well within his discretion to have instead dismissed the case as he was very clear after looking at all of the factors that the circumstance that titus were in were as of their own making it was a function of their choices to file in multiple for and therefore dismissal was appropriate what's your view of your adversary's definition of the first child rule specifically i'm talking about the notion that there is no consequence when two actions stand in their poise on day one it's whether on whatever day it is that you make a motion in the second action the first action is also still out but we disagree strongly in the dr in support with and i'd like to explain why us judge greer way how long is it that the first child role is available and in our view it's available as long as the other side dismissed louisiana action before there was any determination by that court they'd be followed prior to judge bar b a's decision that is correct because they're there well it been dismissed prior to the making of a first filed motion then it would be correct i think we'd have some argument that if we had made a motion and then was dismissed that there might still be some application because of course it is an equitable doctrine that this court has held any yossi i'd like to also touch on e o c because the plaintiffs rely on it so heavily that's a case that cuts very strongly in the defendant's favorite here what the court said there in addition to laying out the parameters of the  it had first on and cross a couple of decades earlier was first of all that exceptions to the first filed role should be rare it didn't knowledge that there could be some circumstances though where the first child well might not be applied and where a district court judge would have leeway those circumstances weigh in favor of application here because what this court did in the e e o c was to look at what was basically form shopping by a plank to the plaintiff filed an action to head off an imminent porson action in another jurisdiction in order to take available of what it believed to be more favorable case on the district of columbia knowing that there was bad precedent in this circuit the court said the district court is with its discretion to decline to apply the rule and to allow both cases to proceed simultaneously that kind of conduct is exactly what plaintiffs have engaged in here and defendants here the one you just described has sounded like anticipat filing it sounds like it's just not just seems to me what happened in this case it's not what happened in this case in terms of the specific procedural tactic but it's exactly the same with respect to the i don't see it in the case of where there is a between filings and somebody simply looking for a better jurisdiction but here what kind of state was to file two paces i would argue this is more egregious because here you have plaintiffs not plaintiffs and defendants filing to action simultaneously and being very is not a concurrent court should be considered i think that it's within the equitable parameters of the will particularly given the conduct that was going on here it's also the case the plaintiff has suggested that in my bigger part i'm going to interrupt you because i  so you're position is that it's it's really just the federal forum and not the stage of the litigation so that you could have one action in the district court the other action in the appellate court and vice versa and that would make  difference in your first filed analysis well first of all i think that because it's an equitable doctrine it makes sense to do what courts have done for example in the scene which is to look at the circumstances of the particular case and here with respect to the first motion that was filed there is no question but that that was filed prior to judge barky the session so these arguments are irrelevant as to that first motion then the dismissal attendant to that motion with regard to the second to m that were filed the same purposes that the doctrine serves when it was pending before judge bar b eight were equally at play there was duplicative litigation that was still going on plaintiffs were actively availing themselves of that form pla effect to a decision while it is on appeal is a risky proposition because if it is reversed then there is a lot of procedural that that will result so it was actually more appropriate for judge an to decide this on first file grounds in that window then it would have been to a turn to race to the car to race you to cut could have supported the decision and certainly would have now but in that window the first filed well with a less intrusive doctor and to have applied  a final judgment on the merits or prior suit the same parties are privies and the subsequent action that's based on the same cause of action there's no question here that we have identical claims and identical parties so the only question that would have to be district court is sitting in diversity at some tech says very plainly that you look to the rules where the federal court sits to determine the purpose of effect of a judgment when it's entered in diversity so if you look here to determine on statute of limitations so that's the logic that leads you to a very clear result that based you to cut affect should be accorded judge under decisions what plaintiffs do is they refer to the traditional role could not he decided the case on first five rounds and i believe that in order for you to reach the race should have a question you would have to conclude that he abused his discretion in dismissing those cases on first grounds if we were to reach that issue if you were to reach that we would strongly encourage you to decide it's a question of law the law is clearly teed up in the briefs and we believe that the answer is very straightforward if i could just briefly touch on the traditional is also reflected in some of the treatises that the plaintiffs cite morris wright miller the restatement what some tech does is to discuss that in the context of explaining the role that it is discarding at page five hundred four of the decision it sa the traditional role is something that has that has led to form shocking because you can have different rules in the fed on the state courts it says we are not going to follow this effort to follow the traditional under under federal procedure forty one b instead we are adopting the position that you simply block to the rules of the state where the federal diversity courts it so these references to the traditional will are completely irrelevant on the face of morning at least a quarter think a pony a speaking of half a ticket of brands international inc in addition to the arguments raised by my colleague which i support my client she hated brands international and was promptly dismissed for lack of personal jurisdiction  the reasons we believe judge angels are correct reaching a conclusion or in our papers with one exception of the dime or a g vs bellman case issued by the supreme court earlier this year in which the court clarified the sort contours of general jurisdiction ohio corporation now in north carolina never deller corporation and never had a principal place of business or conducted any systematic or continuous activities in delaware that would cause someone to conclude it should be  with respect the personal jurisdiction will rest on what's in the briefs on that with respect to the first filed issue list like to point out that when the district court decided the motion in the motions in march two thousand and thirteen may and september twenty thirty nine there was no concurrent jurisdiction with louisiana because louisiana actions had been dismissed and that's in the record it eight a ten and eight thirteen with respect to the notion that the plaintiffs were purposely availin themselves of delaware and tried to time the courts i think the letter in the record which is that page eight to sixteen and seventeen is very clear that we are being open and honest with the courts and explaining why the strategic choices were being they and door those nothing happened in those actions until the defendants moved to dismiss there's been no discovery in delaware no proceedings of substance before judge andrews on any issue the first thing that happened out of the box was the defendant's move to dismiss on the first file d ne so there's not been any proceedings of substance we would have had no objection to a stay in fact there was a state issue or not not to say issued i'm sorry we requested to say because a similar case had gone to the delaware supreme court of blanco case on the issue of delaware the delaware statute of limitations and so it's too much to accuse us of trying to manipulating the courts there was none of that we were open and honest and the judge editors expended no resources in this case frankly state a does not bar an action in state b with a longer limitations period and what it says is that's the rule followed in the restatement state and in writing miller and everything else the of course states are