asli find that s s witnesses were inaccessible in the united states the second main question this appeal presents is whether the trial court relied on that rooney is finding to overcome the strong presumption that applies to fresh results as a us based company and the third is whether that that error that that went to the heart of this order spilled into other evaluation of the factors including the public factor of the  the big problem here was that the district court relied on an equity standard that is really not good law and as a result did not discuss any public factor other than choice of law and it although it said and kind of a single line that nevertheless the public factors way in favor of dismissal it i can't really tell to what extent standard really affected it's ok made it so analysis defective the whole thing about the witnesses the south american growers that the district court said well they're not parties to judgments that that seem to be an error it seems to me that the district court might very well with with their correct analysis come to the very same conclusion that it did here which is dismissal form no convenience in a way that would be utterly invulnerable to attack on appeal but but the problems i've just outlined to me at least suggest that the who we're going to have to send it back well thank you  if you have further questions for me to be happening answer otherwise i can reserve the time for a bottle  it was not helpful for us that you weren't here at eight this morning we didn't know whether you were here or not or whether you were going to have to be here and it's really important for the clerk that that you be here when when we asked so that we know well beforehand that we've got the parties we need to have and then we can get our business done and i apologize to the court i had a taxicab driver who was and may with the courthouse we circled for approximately forty minutes best for a lawyer and again i apologize may i please the court i just do want to focus briefly on the equip hose in issue that the court identified and the public  not law and that's not a good law that may be your honor but at the time the district court made this ruling there were at least two cases from the circuit that did in fact apply that standard both the will they mentioned and they've never really it's never been part of the holding in the all donna case one of the cases in which it was mentioned the court like the district court here then went on to address the standards it public interest standards it deemed relevant in the language in piper air when i can't tell though from this order is whether the district court really made a determination of what the all the relevant public factors are because it only really mentions one well the public and the public factors recognised in piper are in ministry to the difficulties it's the first factor and i think if you read the court's opinion it is clear that the court did recognize difficulties difficulties in compelling witnesses in getting admissible evidence and having the material evidence which well it sort of bleeds over into the administration though because it makes it difficult for the court to administer the action assuming that evidence from third party witnesses or third party sources in the netherlands is available through letters rotatory the hague convention or it and any other method that might be available that places a burden administrative burden on the court to administer  those methods and to obtain the evidence it also causes incredible delay in getting the case to trial this is a case that is so unusual in that literally of the evidence material to the fraud and breach of contract claims resides in the netherlands it is so overwhelmingly clear the interesting issue here is that it's hard to understand how plaintiff improve its fraud claims in a cork a district court in florida i will not be surprised if under a correct analysis the district court came to the same conclusion my concern  is that there are at least three legal errors here that that seemed to me after be corrected and what about the evidence and testimony and witnesses not subject to party control located in south america who were apparently willing to come to florida but not willing to go to the netherlands that speaks to the issue judge prior raised earlier it doesn't matter if they're him parties and fact that makes it harder to get their proof if they are non parties and that the surveyor who sort of the mystery shopper who went to the netherlands and did this incognito survey we're not sure exactly where the surveyors located however there is no evidence miscible evidence in the record that the surveyor or any of the south american or ours or their representatives have agreed to come to florida to testify there is a statement in mr crawford state liberation without any substantiation there than the forum one convenience motion the court stayed discovery while the motion was pending so we really do have a bare record other than the record on the motion as to the others the south american growers themselves it is not clear who it is who would who is greed or would be willing to come to the united states but their evidence is peripheral as i believe the district judge noted the only evidence growers might have is the condition of the berries either when they left the fields in south america or perhaps when they were created and shipped we don't know what happened and all right to me you know i  don't disagree with that i think that's a reasonable view but the problem is that's not the ground on which the district court you know dismissed it the district court said well they're not parties and that that's just iranian you know conclusion right that the fact that they're not parties is not the point is that the fact that they're not parties is not the point on the form on convenience motion i think the court looked at this looked at the evidence where the material evidence was and concluded that it was so overwhelmingly in fact exclusively available in the netherlands as to the the united states as i have a treaty with any country about that that's just that was an improper consideration wasn't it well it may have been the court took it from mr mullen ours declaration mr mullen are is an expert in dutch law and that was his conclusion he did not a pine on whether such treaties existed in my experience the only way to get discovery from foreign countries is through letters rotatory in perhaps the hague convention  hear again we have the cite is in the netherlands the evidence as to what the reasonable value of the berries was is in the netherlands all the evidence on whether there was some  going to be making dough really is is almost like i didn't know voted terminations for us to determine that it should be a dismissal for form convenience and i don't think that we're in the posture today to be able to do that the court judgment the fact that the growers are not parties and the equitable boy standard to me all three of those are legal air and given the fact that we're dealing with this sort of free wheeling multi factor balancing analysis judge prior's point is that there's just no way for us to know sitting here you know sort of a step removed from the process how those errors did or didn't affect the analysis as judge prior says it may well be that on remand you make all of the arguments that you're making to us today and you prevail i think yes i think there's an excellent chance of that and i would suggest to the court although then if that is the case in the interests of administrative commie it when you look at the administrative standards again we have mistreated difficulties the burden on a jury those kind of standards other than the choice of law which the judge did at that court have any further questions we do not p do you have a warm enough code to go to the netherlands unfortunately or fortunately i don't think it will be me in the netherlands i thank you your honors  i just want to briefly touch on this echo post ended for a moment in the event that you're writing about it i know that your honors in your character or are fully capable of researching it but something i found in preparing for this or argument in but there's also something i want to call to the panel's attention to the extent it might have already come forward we did not raise this issue cares ok thank you thank you taken thank you