support this morning by vacating the decision of the district court this court can reaffirm the principle that a district court made not disregard always possible allegations in determining a motion to possible allegation standard and just to reiterate the law that the district court should have followed the district court should have followed the law that says that the that the complaint only has to state a claim upon which relief can be facts in the light most favorable to the nonmoving under texas law as a court is aware causation is typically a question of fact that's inappropriate for resolution on a motion to dismiss the fifth circuit has also adopted that principle that under texas law causation is a question of fact for the jury it is now also allow circumstantial evidence to form a sufficient basis for the causation of using personal property in a texas tort texas tort claims that so that was a that was a different analysis that was applied to that because they said this and it well it was fo act which honors and in this case again the issue was not whether the appellate prove causation the issue was whether they had pled causation in the complaint and that's what the district court should have looked at if you look at if you look through the forty six page complaint there are dozens of paragraphs where the appellants have pointed out the issues they pointed out the the nexus between the fact that the  telecommunications companies they were aware of the necessity for being able to locate someone readily in terms of a life or death emergency they were although obviously the district judge was wary fact here is that all the reasons went into this that went into this sad situation tragic situation it was not the telecommunication companies that caused any part of that other than several minutes of it and your allegations some of that several minutes plausibly read would not have altered the outcome so what you got a lot of response to that perhaps but what what's wrong with that of there there are two things wrong with that analysis the first thing is that the district court in doing that in making that analysis will have to say there are two plausible allegations here we've got one call plausible allegation you yours i was i must come from the complaint you have some allegations about you know how soon these would have shown up on cruiser monitors and other situations  but but it seems to me the ultimate problem for the allegation and correct me or do your best to persuade me is that several minutes is the delayed that you laid the feet of the telecommunication company and several minutes would not have altered the outcome under your own allegation it would have altered the elysee drastically and if the telecommunications if it had use technology that technology would have identified the exact location within a few feet that telecommunication technology that was available is similar what labor's using now for use in the driver could pull up next to you within just a few feet that technology was available by the to the telecommunications offense at that time if that telecommunication technology had been used at that time what would have happened is missed call miss cook's call what have shown up on police cruisers not just in the nine one one department so it would have shown up on police cruisers that would have shown up with the e m t that were three or four minutes away so that's what would have changed that that would have added additional responders it would've been just better but according to your complaint and and you can correct me if i'm reading it incorrectly but according to your complain some determinations were made by the city of dallas dispatch and all of that with regard to how to respond to the cone which is altered in some fifteen minutes between the time the call is placed in the time the police actually showed it is that right and so how is it going and i don't want to presume that i'm getting at the same thing i think to myself what was getting it so how is it then though that dulls few minutes would have mattered but with regard to the causation  operator who actually responded would have taken certain actions would they have taken actions different if that call had been at that address had appeared within thirty seconds that's one issue the other issue which is what the district court ignored is that if that address had appeared on the screens of the other police in the area not the responding officers that's where the district court went to right he looked only at the responding officers did not look at there were other officers who testified at a criminal trial if there is an e m t who testified that they were three or four minutes away from the house there were other officers who have testified again this is deposition testimony from other  had seen that address on their patrol cruisers in their patrol cruisers they would have responded they also testified that the deceased was screaming for sixty minutes they also testified that if they had seen that address on their computers in their cruisers they would have arrived there they would have heard the scream they would kick the door in they would have saved her life so that's the possible allegation is played in the complaint when the paragraph that we need to earlier they would have arrived early or they would have keep it or door because they would have been able to hear her screams which lasted seventeen minutes so that's and then he honors another poem that you talk about that  seventy eight starting there well there are there are multiple ones are all right and the same the my ability that judge said if it's water the northern district discussed in a texas case applying texas law it's davis versus dallas county five forty one f supp second eight forty four says that more than one action may be the proximate cause of the same injury a superseding caused which is what apple is argue is an act or admission of a separate agency that destroys the causal connection between the negligent act or mission of the defendant county when a new cause of action cooperates with the defendant's original negligent act and causing the injury the original defendant remains the proximate cause of the injury here what started this chain of events is when that address didn't show up that's the first that was the first negligence that happened even before you get to the city of dallas is negligence the first act of negligence gross negligence because they prevented other offices in the area from being able to respond it prevented e m t from being able to respond there is no dispute that she screamed for sixty minutes you could hear her that the tape is in the record  court were to look at it in the complaint but because of the consolidation of cases the tape was on its way into the record but she screamed for sixteen minutes there's no dispute so there's no dispute that the dallas police chief said that the normal response time is six minutes there's no dispute that e m t testified that they were three or four minutes away this is testimony in a criminal trial so that testimony is on record and we reference that testimony in the petition so the very first act of negligence was a telecommunications equipment failing in this was equipment that the appellant's wanted they wanted because of her prior history with  ex husband she needed to be able to long be located quickly she went into a store purchased the phone from a telecommunications companies and received a representation from them that she would be able to be located using technology in a phone it didn't work when she called that day the address as a modified we don't know if their technology ever helped get an address because she had called before they had her address and other records so the telecommunications companies services and products never worked they never worked she had made a represent they had made a rep representation that they would would work and being able to locate her so again that the district court went through and ignored the evidence the evidence as to gross negligence there there can't be anything more gross than the fact that that these telecommunications defendants recognize and they've represented all this is in the complaint they they represented to congress in the texas legislature that they know about nine one one location tracking they represented that they are aware of it and they had the best technology at the time where they did it again there's there's evidence in the record and you know paragraph one thirty four hisses notifies them that there were several testing companies and independent engineering firms that indicated that there was better technology already in the marketplace where they could have again enable ms cook's address to appear on the patrol cruiser again not just in the nine one one that's where the apple leaves want the court to focus that's where the district court focused the district court just looked at those actions and the district court said well maybe their actions wouldn't have been any different if th address had been received earlier but again this is a motion to dismiss the evidence had been developed there is no discovery has been allowed against the city of dallas no discovery against a telecommunications defendant but again for the purposes of the motion to dismiss the district court should have assumed the truth of those allegations that were played there all possible because we have testimony from the first responders that they were a few minutes away and they would have addressing today why this court should affirm judge the leases decision dismissing the telecom defendant from this case i will start your honour's in addressing first implausible nexus cured and why the district court and properly applied the standard i will also address that why even if the plane and why therefore causation proximate cause fails and then wrap up with addressing why also gross negligence fails here as well as why this court can affirm here there's only so a couple of key allegations of fact even though the complaint is long when you boil it down to take out the conclusion of statements but look at the key elevations of fact which were certainly given all deference here by the district court first with miss cook's life in danger she used her cell phone the samsung phone over the teen mobile wireless network to make the nine one one call ms cook as alleged was a frequent user of nine one one but when she was known domestic violence victim she called from a neighborhood and was of the class that the plane of celebs were systematically discriminated against it was immediately apparent to the nine men one operator who answered her phone call  ot day that she was in danger despite all of that her call but it's never categorized as a critical call mr pittman talked about the six minute window that chief brown  the city of dallas talked about for responding to critical calls this call was never designated as a critical call by the city of dallas not by the nine one one operator not by the dispatcher and not by the police that decision as the district court properly determined it was the system systemic issues of discrimination the decisions that were made along a chain that has absolutely nothing to do with the telecom defendants technology or in the ability for us to have or whatever they would have that leases an allegation they could make an independent decision not waiting for nine eleven dispatcher to tell them what category this call fiction too critical or oh wow and they could respond allegations in the light of what was actually played in the real world and what actually happened as well as how that would have actually worked so first of all judge the judge so he's did address the issue least that were in the facility who were in the facility several minutes after the technology had worked and shown to the nine one one operator what the location information was nevertheless those police officers never took the call they never were dispatched where after several minutes is it the allegation in the complaint that the police cruisers actually had the address or just  you know it's only that they they could have had it understood so i'm looking at what the complaint said yes or no and the knobs are the allegation is that there is better technology the police cruisers would have and that's what i'm in for response to you you're trying to evidence i'm trying to look at what's in the complaint so why is that not a plausible allegation that had disappeared you'd also need to allege i could make an independent decision and i have to check with mr nine eleven call they don't check with the dispatcher should we respond to this or not explaining what's in the complaint or so based upon the commission that cited that went was over the city of dallas telephone system and that's what the plaintiffs rely on to talk about what a a dispatcher say what is the emergency that's being called is there an emergency at all here and then if there is an emergency what do we need to send do we need to send a fire truck do we need send  apply the allegations give them all the deference but you do have to apply it in light of what was actually play that did happen as well as if that makes sense that the court is allowed to use common sense that what if it makes sense the person in the area could say hey let's go check it out and we're go check it out  well it doesn't make sense here because for those same police officers were in this vicinity and didn't take the call second they didn't have that technology that instantly told them about it it was filtered through this other system well in even if they did have that that's what it would then have it was so even if that did exist you would still have the problem of if you have all the police officers in the vicinity rushing rushing at same time to different emergency calls you're not going to have you know going to know what type of emergency it is what an cure of course the discriminatory practices that are alleged would have applied in the neighborhood the allegations are that one of the reasons that the police officers took fifteen minutes to finally reach this cook's home even after they had the location information several minutes later is because of the discrimination from the neighborhood that she was a little bit mentioned some allegations based on deposition if i recall that exactly how he put it that some officers testified they would have responded without waiting for the dispatcher and they didn't actually say that but they would have responded had they had the address which was the context for that well your honor those paragraphs first of all the other side our side that if we would have had the information earlier we could have responded that is true here as well say they would have responded  alleged are to take that fact as true again it's not plausible that those police officers would have done me any differently i don't understand why that's not plausible it's not possible based upon the facts that are plugged that the only allegation of negligence on the part of the telecom defendants are that there was a several minute delay in providing the location information it's not plausible to think that that several minute delay here led to fifteen minutes of the police officers finally getting to this cook's home and when they got there all they did was not an officers it would have been conscientious police officers who responded much quicker time your honor based upon the facts that are played there's no reason to think we'd have a complete change of heart because the allegations are that there was a systemic problem within the police officers to discriminate against domestic i don't see it does it not said they would have responded then they're not the ones who are discriminating p but your honor based upon the allegations that are pled the particular allegations are that two days later ms cook's family calls after not being able to find her calls from her house from a different cell phone nine one one and that they are discriminated against in the same way their calls not taken seriously police are not sent out to help them so there's no plausible inference that you would have to show you there with the superseding intervening cause that would have a sting wished any potential liability from the telecommunications big that would you say that's true that the causation link here your honor is correct there is no proximate cause the causation link because of the steps and the only alleged negligence on the on months away and there's no causal link that can that is plausible that would connect us and even if you can get past it all and twaddle here they didn't fall into what what what is the alleged de facto here of the technology the only alleged effect is a delay in hindrance that falls clearly within the texas supreme court's decision in st joe's that says as a matter of new allegation would have directed the address immediately to the nine eleven operator or is it also that it would have to directly be addressed immediately to police in the area use at the allegation that it would do to gone faster to the dispatcher or is the allegation that it would also have gone immediately to police in the area i just want to what i believe about the claim i responsive to some of the questions that the court had regarding the notion of factual plausibility with respect to this theoretical target technology the bottom line is neither samsung to team arlo is legally accountable for these theoretical alternatives because we were not as a matter of texas law because in fact of the injury and independent of that we had a legal duty in that regard because as admitted in the cook the pellets complaint the technology that was made available here actually worked miss cook's location information was received by the city of dallas within several minutes and notwithstanding the suggested by mr pittman that almost as if there must have been some metaphysics but  notwithstanding fact that she picked up the telephone and because she picked up the telephone and called the one operator they were able to ascertain her location there is no plausible alternative explanation as a help as to how they otherwise would have obtained that information so the point of the parser i think is the proper analytical framework for it will be six analysis in the case of this kind in judge sillies applied the correct methodology because he actually looked at the affirmative articulation of facts in the cook appellant complaint to determine that the universe of facts that they were suggesting characterize the event could not be reconciled with the legal criteria for recovery there's nothing novel or out of the ordinary about dismissal was appropriate because quote these allegations fail the test of commonsense plausibility when considered to gather with other allegations in the complaint that's critical because the other allegations in the cook appellants complaint is that these say have some technology in the tivo technology operated to convey where ms cook was within several minutes which was a time sequence under the six minute response time that mr pitt im a reference to she could have been aided so it had nothing to do with the operational technology why she was all to me regrettably murdered there were the choices irreconcilable with the legal elements relates to the sanchez opinion sanchez makes clear that under texas law when someone is dealers that instrumentality in some passive way furnishes the conditions or no the way to characterize it is creates a circumstance where some independent actor or independent circumstance actually causes horn that the passive instrumentality as a matter of texas law cannot be deemed the cause in fact so even if you sue for the sake of argument that there is this other technology whereby location information can be being directly into a police cruiser and bill thing about the technology here actually in an affirmative way cause injury at most at most it could have furnished the circumstances were about other individuals they connected their responsibility so in that respect neither t mobile that the phone somehow in and of itself in his operation could have been a proximate cause of it's cooked to death but on the face of the pleadings and sanchez in the texas equivalent to the toby six cont s procedural context the court held that there can never rise to the level of proximate cause i understand your argument your point is they responded timely anyway i mean they got the information timely way so it doesn't  matter they could have gotten the information timely never format you and you you but i've gotten the impression that you're saying that that technology doesn't exist in your argument and i thought it was clear that it did exist in that other police departments do have that it may be a tad beyond the scope of the record but it does not exist in the form that the cook appellants have suggested my understanding of the technology is that for that kind of data to be  routed directly into a mobile police cruiser there need to be a physical connection and that's one of the reasons that you have to at the cost of an excellent point you have to have someone to exit digesting characterize information so that appellants have asserted is that at most whether the technology exists or doesn't exist it may or furnish the conditions so which is not above as a matter of texas law so we never get to the point of whether or not the technology does exist as they suggest it does what is your position on the misrepresentation wrongful death and survival claims how do those shake out all all of those cause of action also have cause in fact that's actually what transpired it took only several minutes for her to be located and as the first within the fat true universe that the cooker pellets have created that if that would have been sufficient but for the actions of people over where it's the pelleas had no control so it's not plausible to suggest that whatever the facts may bear out that from a legal plausibility standpoint the misrepresentation or any other cause of  allows cook to connect and i one system even with further to enable the nine one dispatcher to discern miss cook's location and all of that transpire within the time sequence with something could have been done about it you cannot much a issue of causation as it does a issue with respect if there's any legal duty whatsoever so to your point just regarding mr cetacean or some of the other cause of action france's gross negligence there was no legal duty in this context because the technology didn't work the technology didn't work in a way that would have allowed ms cooked have been aided under the circumstances that exist so no one no rational person had a basis to anticipate any additional technology however hypothetical or however real was even necessary so even soon for the sake of argument it did exist there is no legal accountability that can be attributed by the same song or the t mobile for those reasons respect requests that the the honesty of it to begin with let me dispel this notion that the technology worked it never worked the telecommunications service and a product it never worked that that's the allegation in the complaint anything else any additional evidence that the apple lea to present would be present on summary judgment in the complaint at paragraph twenty it clearly says that metro p c s does not provide addresses there's nothing else in the complaint that said it ever worked the technology or the service the only thing we know is that a telephone call was made to the nine one one we're talking about the location finding service that never worked never worked samsung never worked though t mobile were respect to the technology that allows that would have allowed the address to appear in the patrol cruisers that's in the complaint at paragraph seventy six what's in the complaint is what the police testified about not something we've made up the police during kelso we've discussed ascensions case before it is talking about a different statute but nonetheless it's discussing process macaws and he says for condition to be a cause in fact the condition must serve as a substantial factor in causing the injury possible that's not approximate call of if that were applicable to telecommunications as opposed to just property isn't there when we're talking about young i think i think the sanchez case stands for the and occurred now but what you're looking at is the facts that actually lead to the injury that actually occurred as opposed to some hypothetical other facts oh those are to new a fact again look at the facts in the complaint which is what we're limited to the facts in the complaint say that if the technology had been used again just like i'm not sure why apple lee's contend that the technology doesn't exist we've got several sites in the record one hundred that that they don't officers who testified that the address would have shown up also on on in the cup plane at eighty one eighty two paragraphs eighty one eighty two the officer said if that the address was had shown up they would have arrived there they would have kicked the door again this is not hypothetical this is what would have happened had the technology been there these officers who were in the area these officers who worked at precinct these officers who testified under oath in a deposition that that the technology would have appeared in their patrol cruisers if the address had appear dress said the address they didn't work at all that the dress didn't appear anywhere but why isn't that implausible in light of the fact that the nine one  give the direction about the president's body on it is outside the record but i took the depositions and i could tell you that miss cooke at cole there before and i could tell you that the officers looked at prior cause sheet to determine the information so there's nothing in the complaint and again nothing in the complaint that says that it would have had to have worked for the nine one one dispatcher they just knew of her as your  and i think even they had admitted in their brief in one of the briefs they go into her history as a domestic violence victim but nevertheless your honor i game we can't we can't separate that the initial cause the initial negligence was because the addressed didn't show up so there was no superseding event that that was present here i mean interest didn't show up and that's what you pled they still responded in a certain amount of time that part of the response within a certain amount of time and it's just the officers that didn't go to the place and right that's the concurrent negligence but those same officers yawners it and that's what's in the complaint the same officers who who showed up late in their depositions they testified that if it had arrived earlier and again you know since we only have forty six pages of the complain i couldn't put it in everything that happened in the deposition but those same officers who showed up late said that if they had gotten the address earlier because there are a lot of other things that they had to investigate in the meantime which caused them to show up late but they said the same officers said that if they had received the address in their cruisers earlier they would have arrived there were they would kick the door down because they would have heard a scream think