requisite facts and circumstances of defendants alleged frauds oneself dealing and minority shareholder oppression in his st amended complaint however through a series of procedural and substantive errors of the district court mr deal was effect y deprived of his right to conduct discovery and have a full and fair hearing on his claims the district court erroneous way dismissed certain direct claims asserted by mr deal in his capacity as a minority shareholder against the defendants who he alleged breached their fiduciary obligation to him as officers and directors of tugela those claims were dismissed by the district court on motion under rule twelve b sex but relates a standing which is governed by rule twelve b one and are not and should not be subject to dismissal with prejudice although the court used to a quick question that's when i make sure i've got my head screwed on straight i guess it was my impression that that my understanding your honor is that this would be twelve be won as a matter of fact there was actually a predecessor case to this that was quoted often by the appellee during during the district court proceedings where judge kelley dismissed certain claims not directly not not the same claims but but but certain claims asserted against the majority shareholder under twelve b one but do you have any authority to the proposition that  if you're on it would like i'd be happy to follow up if the court desires me to do so that's ok i just wanted to kind of test the proposition of it thank you so much although although the court applied the so called general rule in georgia that claims related to dealings in corporate and corporate assets are not direct but rather derivative claims as fighting to the thomas versus dixon case the court also failed to appreciate the taking the factual allegations of the st amended complaint as true mr deal's claims fall within both recognized exceptions to the general rule st mr dio is an oppressed minority shareholder who seeks to recover from a special injury defacto dividends that he his share of which he did not recei separate from the other shareholders other than his brother the remaining shareholders are correct mr k he said other than struthers does that sort of last part of your sentence swallow the exception that you're trying to pursue your honor it really doesn't because in this particular case the brother was given an opportunity to participate in this lawsuit elected not to but where he's he's similarly situated to mr mr deal obviously they've got the same side of circumstances they would purport to complain about at the same time back in and of itself there's no case law indicating that just the fact that there's another shareholder out there that's not advocating or their interest necessarily prevents mr deal from pursuing this claim directly there was argument about that but there's been no citation from the appellee for the notion that just that only one shareholder could bring a have a private right of action i believe the come only vs comeau he case mate may speak may allude to it although i'm not sure that it has on it on all points but  the the remaining shareholders are current or former officers and directors who ratified we allege the self dealing transactions an issue and thereby would be a stop to complain about them and  want to emphasize that in a in doing this analysis or evaluation we would submit that the allegations of our st amended complaint would need to be taken as true as such there is a minimal risk of a multiplicity of l law supporting the notion that the other officers and directors would be a stop to complaint i believe is the marshal versus w e marshall case and the picket vs paying case that was cited in our briefs nd this lawsuit arises in the context of a closely held corporation as such merely increasing the value of shares only works to the advantage of the majority shareholders not the minority shareholders mr deal and his brother who in  market for their shares which comprise forty six percent of the company under such circumstances mr deal should be allowed to pursue direct claims against the defendants and as i indicated nor should the fact that his some morally situated brother decided not to participate in this lawsuit unnecessarily effect this analysis with respect to those claims that the district court deemed to be derivative once they dismissed the direct claims the district court then proceeded upon motion of the who are elected to constitute that committee to justify a dismissal under this georgia statute the defendants have the burden show that the committee was independent conducted a reasonable investigation of mr deal claims and made its conclusion not to proceed with a derivative suit in good faith mr deal smith's defendants failed to satisfy this burden for a number of reasons however before delving into yes why  following the court of appeals of georgia for a number of reasons the court of appeals of georgia's decision i believe that many of these cases closely follow delaware law and the delaware law on that has changed brown versus we would submit on the erie doctrine the federal courts should make this decision the other thing is is that this disc this type of a case in its motion to dismiss has been deemed to be a hybrid motion for summary judgment motion to dismiss and under both of those standards the federal courts used a no standard of review so we certainly believe that a standard proper standard review that the supreme court if it was certified the supreme court would probably follow at this point based on the brown versus eisner decision is is to nova but we believe that the district courts can make that determination themselves and i believe there's a case are knocking versus golden and blue family trust versus jefferys that speaks directly to those issues your honor indicates that rule fifty six anders applied to this required showing for a motion to dismiss under the statute that has been described as i said of a as a hybrid motion for summary judgment motion to dismiss the motion for summary judgment st goes to to dismiss in order to conduct discovery into the alleged independence reasonableness and good faith of the committee's investigation the court erroneous lete and i had mr deal's motion and under the circumstances the court's decision constituted an abus discretion under the snow vs trust company case w s p t v versus lee case and the kelsey vs withers case curiously the court concluded in its order that mr deal failed to sustain his burden to challenge the committee and its report while at the same time denying mr deal his request to discuss every it's well established in this circuit that summary judgment should not be granted until the party opposing the motion has had an adequate various alleged deficiencies with this committee's report but i want to speak directly to the other issue we had relating to discovery in this case it was denied and that was in the context of the motion for s judgment with respect to our fraud claims that was brought by the defendant only in the dismissal of the direct and derivative claims other than the fraud claim and certain other statutory claims and shortly after the filing of defendant's response of pleadings mr deal sir written discovery the record reflects that the defendants failed and refused to properly respond to mr deal's discovery and the court pretty much stated as much as a march th two thousand one hundred hearing document number one of the three page five helped to address mr deal's request record assistance because discovery efforts were being obstructed however at that hearing the court afforded defendants with an opportunity to move for a protective order that they proceeded to file shortly thereafter the defendants prematurely moved for summary judgment with respect to mr deals for all clients while defendants motion for protective order was pending in response mr deal once again filed a motion to defer responding to the motion for s judgment until pending discovery efforts in the case could be completed and that was denied by the court the court denied that for the reason that the court came to the conclusion which we submit was error that there was no just reliance by mr deal on alleged misrepresentations denying discovery where there was a protective order motion that was under color versus j c penney company and was inappropriate thank you reply is the extension on the equitable lines under state law there are no federal decisions in their favor in favor of a stance and there's two circuit courts from two through the abstention doctrine in the side as a matter of on the merits that it that it had no authority to dissolve the corporation abstention seems like such an odd lift me here i mean you know i mean i get on the side i moonlight as a federal courts professor and when i abstention i spend all about sixty seconds on it because i'd basically tell the class that you know it was sort of strangled in its crib it's never really been applied i'm not aware that we've ever applied it or up held its application seems to me it certainly should extended beyond the fairly narrow circumstances state administrative proceeding which you don't really have here and it just seems like there was such an easy out to the district or just to say as a matter of substantive law i don't have authority to do this going against every other district court and circuit court could have been an abuse of discretion but were not vague as to the question that are subject to t ask you if i could about mr deal's fraud claim it i just want to be sure i understand your position is it your position that the district court didn't need to address  accounting records and tax records to create a genuine issue of a material fact because he admits it is that position he doesn't know what the documents are he's not an accountant he can't he can't discern what they are and so we have a statement then respond to it in a reply brief don't do that but it is you know i'm just thinking about you know just story here i think is a really good judge i mean he should have been aware the outcome because it does not create a yes even this material fact when a party tells two different stories one of which is blatantly contradicted by the record the united states supreme court has but you don't adopt the version that was contradicted for the that was there is no clear error there and the reason is because they didn't follow the rules on that either in order to have it is the most eager to point to specifically what you're going to need to get in order to be s discretion we do not believe there is any evidence in the record whatsoever of applying the wrong standard or being outside all or of what acceptable ruling would be mr clayton and the defendants are arguing from some and focusing on certain representations that were an issue that were made back in twenty million one hundred and twenty two thousand and thirteen during this e g d holdings litigation and then their argue going that mr deal did not go on i are justifiably role i on some of those representations but what they also fail to address completely in their motion and fail to recognize is that there are really there's another whole nother set if you will of justifiable reliance here and that is that is that where they were engaged in self dealing and i believe that there is evidence in the record of self dealing as a matter of fact the disciplinary review committee report that was submitted submitted during the course of the dispute over the derivative claims and met z and judge story acknowledged i believe during the hearing in doc document one o three that there was in fact a bate basically that there was over twenty five thousand dollars of improper expenditures for the benefit of mr gilmer paid for by the company but what we were trying to get through discovery was all of the additional patterns and instances of self and we were seeking to discover all information relating to the totality of mr self dealing that was going on in the payments that were being made that were being deducted in the company's financial statements as being ostensibly business related and whether mr deal personally i might have had whether mr deal personally i don't those financial statements or his accountants did doesn't change the fact that he is that there is an issue that he justifiably relied we did that deposition testimony and and so the court was aware of that you should have taken that into consideration but the other issue is this under georgia law just