it's morning kevin representing palance i'd like to reserve three minutes for rebuttal these current since it's now let me begin with the issue of whether the district court here talk about jurisdiction a little bit of course there is jurisdiction for two independent reasons st the claims that were server which of contract work claims there were no claims left here as a practical matter was there ever a judgement day or no there was not so what did the district court do that was meaningful in was never a dreadful drought or so so if there's never a judgement and they've only asked al al the stipulation is the court's participation meaningful voluntarily dismissed on the condition that they could be by both cases after the appeal was completed why isn't that when the it's about the profit there were no conditions at all in the stipulation it was a reserve the right to break to rebut those claims if there ever was any question or disputants over now to look at th circuit docket item number fifteen about this and i didn't mean to interrupt you but right here i have a lot of precedent that says where the parties cooperate for the purpose of creating appellate jurisdiction and i'm reading from the cases there is great risk that the court will sans manipulation and dismiss the appeals now we have in this case exactly that we did not have the district covered involved in entering a judgment at all all we had was a stipulation between the parties you didn't file in the fifty four b certificate so i guess i'm trying to figure out why have i got this case in front of me because ignite circuit docket i am fifteen which is yari the opposition to the motion to  this case were back in a district court on the current record or with that concession by the ari there is literally nothing left if you are so it's just like the american states versus dastard case one of this court's decision now to james i think are controlling if there's nothing left before the district court or it's appropriate when i know appeal at all and before th it we went back to the district court clearly judgment could be entered in light of the concession and i docket although i'm not sure about that and i'm not sure that the district court would in a judgment and we don't have that scenario here what we have is a case where the parties cooperated to stipulate land no judgment so that's what we have now do you have a case with the point the proposition that if the claims are dependent that's excuse me i didn't hear that was that a case where the judgment was not in to i believe there was not a judgment in that case yes there was a judgment entered there was a judgment entered in american states and there was a voluntary dismissal of those own counterclaim without prejudice that but there was a judgment entered all right well i think we've got your argument on that why don't you turn what is the evidence that evans completed the grading by hands for the project and i didn't ask you about plans i said what's the evidence that he had authority to control the grading and the excavation because he i have evidence you say was charged with monitoring and grading but i don't have any evidence of the file for that you say he was in charge of certifying to the l a county that as best making measures were taken into compliance with the fruit grading plants i didn't see any evidence of that in fact this pressley excluded in the bed and in the agreement so i'm trying to figure out where is this evidence that he had the authority to control the grading and their explanation the testimony in t but where is the evidence of the eno iraq even came from the staked areas oh that's in the rambo x report that says that the naturally have go ahead i didn't mean to interrupt you at this point the issue is is david evans and operator did i understand their aiding and  answer is clearly yes it did you're right just a minute if i buy your argument about i've got to find them actually in control or just have the authority to controls i think either here or it's an easier case because they actually exercised direction and control by placing the stakes in the ground so you're not going to perth already to control i care is the actual activities of david evans and lang and that actually directed the activity that was the cause of the contamination said good deeper that's directing excavation as much as david evans place in the space stakes a raid here that's actually directing operations related to  to their opposition to the motion to this mr claim the well we've now conceded that those claims are dependent on the other claims and it's not clear to me that the district court would have entered in judgment on that basis and between the fact that the appellant's have refused to dismiss their claims with prejudice you added out of the correspondence in which counsel specifically said we're going to resurrects in a serve these two claims and again if we're successful on appeal that and we we tried to get them to dismiss with with prejudice so that we could go up on appeal they refused to do so so i think there has been clear intent to manipulate jurisdiction what are you how do i distinguish this case from james versus price turned sloan well in james i don't have it in front of me but i know from reading it my recollection is that the court found that there were there really wasn't  realize i remember as well that we said because the plaintiff assume the risk that are remaining claims in the future be barred by the statute of limitations or latches there was no evidence that she appellate the jurisdiction that's the thing thing we have here well i and i think we're a little bit different i think we're closer to the situations in the change areas for example where you you did have a stipulation in  that what we have here we don't have a specific stipulation between the parties saying oh yes it will resurrect claims in the event of a successful appeal but we have an e mail from opposing counsel that basically says that makes the determination of where to dig and that's exactly what happened here there isn't a single published or unpublished federal case from any jurisdiction that imposes operator y ability on the basis of staging a three and a half year period so that's maybe an average of three dollars to four dollars times a year that a surveyor not an engineer a surveyor came out and put flags in the ground none of that arises to following thought she who creates the dust containing the asbestos controls the dust and it was cologne the pacific the graving in excavating sub contractor that did that and the owner and moments that it was you our side of the case and with respect to jurisdiction that basically is a dispute between the way and the appellant all the issues regarding langan were resolved at the lower court saying well what about this comment by plaintiff appellant dig deeper that that's the only evidence they have of showing of control or involvement  contract documents which are in the record and stipulated to by the plaintiff which clearly states that langdon had in their scope of services has absolutely no involvement agents their contractors servants employees that is an ambiguous language in under under the night vs taurus case i believe well it would seem to me based on that one comment you go one further says you must their responsibility under their contract the ext additional services contract was to comply to get the green permit you must dig your  competent soil and the nd obligation that langen was to do was to check the compaction of the soil to make sure it was dense enough it had nothing to do with the  it was a clear demarcation and further beyond the inability to direct control higher direct tell the contractor how to go about doing their task we were out there that much of a two year grading process we were out there are approximately two percent of the time and so we don't know what is going on we don't really hear but we want to see the results so when we see the result then we can tell th completed your grading and your compaction in accordance with the county requirements and that's precisely what we did and the lower court i believe got it right that our contract was filled we were the complaint said original contract when you move for summary judgment then they started arguing the nd contract is that if that's what i did you said that's waived because you never played it and that therefore the district court came rebuttal the standard of review is familiar whether there are genuine issues of material fact and the pres no motors case makes clear that summary judgment is contractor was excavating in the purpose was to make sure the contractor had enough and insensitive slanging didn't tell the contractor to dig deeper the technical reasons are in the gr proceeded to monitor and direct rating and act if anything so that exclusion doesn't help them on summary judgment it just gave them the option to stop work walk away all the time out but they didn't do that they kept going to the site they were there every time there was excavation and they were telling the contractor in some instances so it's a living and there's clearly a dispute issue that as to i'm interested that you would begin there but maybe it is because you didn't say anything about lying and before it seems to me that one of your  biggest problem is coming up with some jurisdiction here based on that letter because if i go to james and i look at it very carefully it seems to me that the fact that you had a statute of limitations or latches problem which going to go might save you but there's nothing in there that's like this letter which seemed to be solely for the manipulate yourself in this of jurisdiction i know i don't know the audience i don't know why it is that i would assume jurisdiction of this case because you have