discussion of the issue and explains that in this unusual circumstance of an ass i slap motion being granted to their original complaint on their california law they raised judicata doctrine cannot apply i  reasonable practice to file a lawsuit in state court and to add every conceivable federal law claim you might have in the initial complaint just because there's a mere possibility that someone might file the only generates slap motions these days in california and i might might be true but the fact is whether it's theoretically possible or not or even likely is not the issue i think that i have different question which is which is would not apply if at the time there was a federal court made this decision and they decided the issue and that's what we're feeling today only the federal claims the state court judgement wasn't final when that was made if the district court decision is a final judgment then there was no existing state court judgment at the time that was made that's final and therefore the federal court is close of the state court saying that the plaintiff must be given leave to a man right and if that case law is defeated by by a failure to give leave to a man then it would seem to me that it would logically follow that there would be no res judicata effect because there was no reasonable opportunity to imagine the advice lafe law is an unusual procedure in the sense of phrasing that case i return to my original point when we say here that you have to bring a federal claim every time you file a state court well my well result in injustices and there's an injustice exception when you talk about saying whether you express it in terms of a reasonable opportunity to plead a claim or you express it in terms of the injustice that all people should be able to have and also the ability to plead alternative theories during the course of litigation without having to do them all in the initial pleading that's the real reason we have a very liberal rule in state court and federal actually the merits of this case essentially present a question of first impression to the ninth circuit which is whether the ninth circuit should adopt the role of set forth by the tenth circuit in the current students case which we argue obviously it should and the reason is that the right of petition which is what we're talking about here not not the antitrust context is nothing about this case has anything to do with antitrust law the right  petition is a right to lobby seek relief from the government it is not the right to attempt to collect money from a private citizen in a purely private dispute well the right of free speech is also right this refers to the government interference to the government has to provision other than expressly the right of petition and expressly dealing with government lobbying talking about corporations lobbying the government for more favorable legislation is how it originated and the nor and independent in cases and the  cases after that they were the question was whether that was anti competitive activity if you essentially lobby lobby the government to get a more favorable law that railroad industry versus the trucking industry and i'm just asking that question in this particular case the only question is how far do you want to take the right of petition the tenth circuit through a line if we don't see that the right to petition extends to a private letter from one citizen to another threatening them and demanding that they pay money  in the primetime twenty four joint venture case where as part of the statute you have to send the check out you have to make a preacher a pre lawsuit challenge before you're allowed to letter that's required prerequisite for patent infringement again that's protected by north pennington but the letters direct t v sets one hundred fifty thousand demand letters to people that were who were complete strangers them essentially saying we think you're stealing our which is in violation of rico and which has nothing to do with lobbying the government or petitioning for government assistance you could i agree with you that filing a bad a frivolous lawsuit should also be you know not protected but it is going to be the lawsuit but to stretch that beyond that and now say a shakedown letter which may never result in a lawsuit more than half of these letters never result in a lawsuits and that's a fact of the ledger we can certainly amend to allege further facts we never got that plaintiffs first of all as to the petition clause the court below didn't find that nor pennington application immunize the pre occasion demand letters at issue in this case and the court was looking to two principles which it believed were established by the ninth circuit first that the protections accorded by nor pennington go beyond the any trust context and do in fact apply elsewhere also looking in the district court specifically to a second line of cases which finds that conduct incidental to the prosecution of the litigation is also deserving of the petition clause immunity and i will come back to the columbia pictures case which the district court relied upon because i believe it does a stab a rule contra which contradicts the cartoons decision that's being urged by petitioners for adoption in essence than the arguable extension that is being asked of this court or the conduct that's being looked at in terms of the district court decision is whether or not discussions incidental to the prosecution of a lawsuit between private parties which occur prior to the filing of the lawsuit are deserving of the same protection  courted by this court for such communications that took place after the filing of the lawsuit and that is a very limited question which frankly is being as a new matter considered by this court  i believe there are three problems with that adoption by this court first i believe will require overruling the decision in the columbia pictures second the tenth circuit stands alone for those communications and third it's just bad policy it would encourage the cartoons court in essence encourages ambush because under their logic the filing of a lawsuit would enjoy any petition clause protection but any discussion or notice in advance would not and that simply does not make sense this is specifically in  opportunity to mend a complaint well you'd be overruling the district court on that issue specifically found i was actually going to raise are three reasons why doesn't apply one the district court made a finding on that looking at the letters  decision of the court of appeals in california which became the final decision upon the issue and the third is that this issue specifically has not been raised by a according to the chain columbia pictures case a portion of it dealt with the issue of whether settlement discussions that took place between the two adverse parties this ific lee held that that was conduct incidental to the prosecution of the lawsuit now that was conduct there was they did not involve the court at all that was simply settlement discussions between the parties and the circuit specifically ruled that it was conduct incidentals we are talking about identical conduct that may precipitate settlement discussions the only difference between columbia pictures and the case of bar is yes you're right it is in the first amendment because it's petitioning i petition that it's it has to me as this court properly found conduct incidental to the prosecution of a lawsuit to come within california transport's which is the third of the that nor pennington embraced in terms of the rights of our citizens to petition the government but aside from commercial speech issues or whatever if somebody just wrote a letter and it wasn't a petition the speech but i suggest that it is in fact that's the reason why it's a numerated as a is a separate right under the constitution under the logic of your argument there would be no need to talk about petitioning because free speech would otherwise embrace it i suggest it is separate the courts have treated it have dealt there's a body of law my point is that if you look at nor if the if the any is a sherman act there had a special provision that gave increased rights to come to court by businesses then in fact there would be a basis for saying look nor pennington is really any trust but when in fact that's not what happened what happened there is the sherman act was silent with regard to that issue the court was saying in order to keep it constitutional we have to recognize that sherman is limited by the petitions clause it's it's actually baffling to me the nicer guy i believe has it right the ninth circuit has california uses the primary rights analysis in terms of deciding race judicata facts the primary rights now says doesn't look just to the causes of action that are numerated in a particular lawsuit it looks at the fundamental conduct that is being examined there are some useful quotes in there and i'm at seven fifty f second seven thirty one at sac california rule does not mean that different causes of action are involved just because relief may be obtained under either state or federal law are are under either of two legal theories further it says a plaintiff with a claim supported by both state and federal law may not bring separate actions on each ground the first action precludes a second if the first court had jurisdiction to adjudicate both grounds the us supreme court has said that rico is concurrent jurisdiction in both state and federal courts clearly this was an opportunity available to the plate as in a and i really point out these are the same three of these plaintiffs are the same plaintiffs that were had their rights fully adjudicated in california  strains relationship between the cases where the photo trashing was actually first well i would i would adopt the suggestion previously raise that at this juncture  the if this court were to remain and there is a final judgment in existence now with regard to this specific matter and that is in the state of california and so if you were to remain and the district court that it's a mystery well it's it does the there i did the here in terms of timing is only because in california there is no according final judgment status  because there it was important to the court that plaintiffs had conceded and the court specifically addresses that the letters fell within the protection of the  is possible here that doesn't lead to the state court being the first final judgment why this by my brother counsel has raised the issue of these demand letters of six separate occasions in different courts and i actually believe the be tremendous benefit by having an expression of views with regard to the proper reach of the petition clause as well as a decision on the race judicata and just as the court and the ninth circuit in monterey bozza hotel expressed views on both legal claim wasn't brought earlier and there was no discussion of this anomaly of the advice last motion freezing the status of the complaint it may well be the case that we can amend the pleading in the federal court and explain why we bring it and then the federal district judge can make the decision in the first instance whether or not the just in justice exception to rest based judicata applies now you're you can make that decision in the first instance as well that it doesn't necessarily have to be made on this level could go back to this record in the district court can do that if we reverse the judgment in trying to court has gone in the dismissals gone yes yes and so there is no judgment there where we did not have a reasonable opportunity to plead the rico claim in the in the first instance and what would not make sense to require that it would have all the negative effects that we have in the federal court system for one thing which i'm sure your honor can appreciate