beijing's initial complaints with prejudice without leave to him and on the basis of a factual finding that was not supported by anything that was either alleged in our complaint or otherwise properly for the district court our tort claims were premised on a letter that mr adams sent to the national equities exchange in quotations otherwise known as the end e q it's an over the counter stock market place based in china the district court found mr adams communications were protected by the california litigation privilege based on its finding that the and he cues listing application process was quasi judicial but there was nothing in our complaint nothing before the court to suggest that the complaint contained only a limited handful of facts about the any q namely that it's a chinese over the counter stock market place that it was considering a listing application from  beijing and that mr adams had sent a letter to the ne q none of those allegations has anything about the nature of the process that the any you employ when it's deciding listing  applications and nothing about those facts suggest that the process is was a judicial now of course the reason that we did not alleged those kinds of facts in our complaint is because the litigation privilege is an affirmative defense and it's a it's it's an affirmative defense that mr adams bears the burden of proving plaintiff's aren't put to the burden of alleging facts in their complaint to conclusively refute every whether an entity is quite a judicial district court found that those factors were satisfied and for purposes of this appeal the two most relevant factors are number one whether the administrative body is vested with discretion based upon investigation and consideration of evidentiary facts and number two whether the entity is entitled to hold hearings and decide the issue by the application of rules of law to the ascertained facts and then it is fair to say that that the argument on the other side was not only that you specifically listed some functions in your complaint but also they could make a reasonable conclusions as to what the body must do based upon the complaint that you made essentially they have the ability to investigate and theoretically by implication to litigate and decide issues in regard to the investigation requests that have been made so is that right what we know i don't think it is your honor because what we had in the complaint and what we attach to our complaint as an exhibit is an unsolicited letter from mr adams that was sent to the an e q we don't know anything there's nothing in the complaint or the record about what kind of process the any you employ whenever anything in the record th the any q could hold a hearing no there was there is nothing that's right there is nothing on the record was there anything in the record that said that the any q could decide by application of rules of lot of the facts no your honor we don't know there's nothing in the record about the standards or the rules that the any you applied in this process let alone whether they were rules that had the force of law is there anything in the record that said that the any q had the power to conduct an investigation as opposed to the power to say your client's application is denied there  so we don't really know what the district court was thinking of or looking at when it when it stated any sort of that the any q powers clear these items the district court didn't explain the finding or or point to eight as the which was the regulatory and disciplinary arm of nasdaq there's no kind of person a rule that any stuff change anywhere in the world is a quasi judicial entity you have to look at each entity on its own facts in many cases involving u s courts or administrative bodies u s courts are very familiar with those entities or can easily look up and find the regulations governing those entities to determine whether entity is closet usual so we don't actually see this come up in a case law very much here we're talking about a relatively new entity that's only been around for a few years in a foreign country that is not something that you know s courts and certainly this court cited no experience with it not something the courts can apply their common sense and judicial experience to resolve on a motion to dismiss this is something that if the case is remitted  is free to raise this issue later on in the litigation after discovery but it's an inherent inherently factual question that will likely require discovery and likely also expert testimony on the nature of the enemy  securities and exchange commission in this country regulates a whole host of issuers and financial institutions that doesn't mean that all of those issuers and financial institutions are required judicial bodies such that any statement made to those entities is covered to be anything to distinguish the district court's ruling in this case from any case involving a sensually any agency like this in any country anywhere in the world is there a good and bad question would would the district courts analysis essentially apply to any similar agency in any other country in the world it's hard to say your honor because we don't know exactly what the district  too broadly and potentially cover any you know entity that's regulated by government anywhere around the world well one of your primary objections is that the district or didn't explain exactly how it arrived at its to establish two alleged facts demonstrating that the litigation privilege did not apply but even if we had been required to believe those facts it's a better a principled why in this circuit that it is in most cases inappropriate for a district court to dismiss an initial complaint with prejudice without the need to amend unless it's obvious from the face of the complaint that the complaint cannot be saved by any of them and that's not what we had here we don't think we're required to do it but we certainly could allege additional facts making clear that the any q is not a closet you to join today and not subject to the litigation privilege but here there was no reason for the district give absolute immunity to christopher adams for his letter that was sent to the meat chinese or beijing for beijing public listing of stock became a says that  to the litigation privilege under civil code section forty seven identify the broad and liberal application of the litigation privilege and the reason for that insight in the pickton case which analyzes  in the court used to visit a court used to analyze the elements of a judicial proceeding but in the pickton case they also cite silver which says that absolute immunity is necessary to assure that people can can't communicate with public officials regarding wrongdoing and to correct the wrongdoing of those matters and this is exactly what the appellant has argued and it's exactly what they played in their complaint the basis for their claims are is that this letter was sent to the neat and that the ni cad and it was sent to the surveillance division and that's you can see that not only from the allegations in the complaint paragraph fifty one through fifty nine but you can also see that in the attachment to the complaint which is exhibit a to the complaint the the privilege doesn't protect compl to any public official it protects compliance to quazi judicial entity is correct and judicial proceedings yes and what facts were actually in the record determined by the district court that meet the three factors and the test laid down by the california courts in that picked in case you know in this case that the factors that were identified the facts what facts were in the record from which the district court could correctly governmental regulated governmental body regulated by china's securities regulatory commission that's the first one the paragraph fifty three says that the nikkei has a surveillance department of exchange that can inspect evidence and suspend listings on the stock exchange these are the allegations that were made exhibit eight to the complaint which is mr adams letter to the in the site's rules and regulations of the week upon which the appellate was required to comply regarding disclosures and even it cite the article thirty seven point two which are the detailed rules of the niek regarding their application process and how those are evaluated letter also identifies that it was sent to the surveillance division of the nique exchange the paragraph fifty four through fifty seven of the point says that the need or the surveillance division of the need acted on the information and the appellant's claim they were harmed by in support of the breach by the appellants they also added in their supplemental record their brief in the district court regarding the motion to dismiss where they admit that chinese chief regulatory authority the need this is chinese chief with regular authority governing securities and then they compare to the nasdaq the factors that the court use and b s these are the facts that were evaluated by the court the district court and these are plain in the in the in the  appellant there are actual allegations and we incorporate those attachments to the complaint as being part of the complaint as we know and those include the letter which shows that there was a request for an investigation there was facts given those facts or alleged to have been applied whether they were correct or incorrect facts and that would be neat took a position and the listing was either removed or denied weren't make any finding under chinese law that this entity have the discretion based on investigation and consideration of evidentiary facts to act that it could hold hearings and decide by application of rules on one of the facts the result did to the court make any finding that under chinese law the ni cad these powers they've made those findings on page seventy eight of the order on the motion to dismiss and the analysis it was given was that since the need has the power by the allegations or the appellant since they have the power to deny the application or the power to accept the application they also have the discretion to deny it based on this letter that's provided so these are the these are what's identified as giving the need for the surveillance division of the as the investigative arm and body to be able to have the discretion to take in the evidence that was in the letter or evidence from any other source and evaluate that and then have a discretionary call on whether or not this could go but the heart the heart of a quasi judicial authority is the ability to conduct hearings and the investigation would be in the hearing the ability to or the opportunity to review evident facts to apply rules of law that's all on the pick on factors and none of that applies in this particular finding does it i don't agree with that your honor i think it does and it's those paragraphs that i mention including the letter the letter has a lot of information in it about how the nico operates and the allegations of the complaint support those but the way they need the operator in terms of the letter is there was a request that they add value with the evidence and make a determination what constitutes a hearing would be the evaluation of the evidence what constitutes a result of the hearings was your client's letter true as to the knicks powers the reason i say that your honor is because the appellant has attached that letter and has relied on that letter as part of their complaint and charges against mr adams as a basis to claim harm or damage and so when we incorporate all those the court the district court uses its its judicial experience and common sense to evaluate that picture as a whole and found that those the reason that the nasdaq became part of this analysis is twofold one of those is because of the computer express case which is an f c c case where someone sent a similar letter asked for an investigation regarding a listing of stock and it was determined to be absolutely privilege the other side of that why the nat as nasdaq became involved in this analysis is because of the record in the district court where the talented made this argument that this is the neat and admission that the niek was similar to the nasdaq in terms of how it operated and essentially how how the litigation privilege would be allies or how the discretion of the need should be analyzed and so we included in our brief some analysis on that but the fact of the matter is that the complaint has some very unique admissions innit about how the meat operates and what they were doing and what the intent of the weather was supposed to be and the content of the letter and all of those which with the judicial experience and the common sense in the application the liberal application of the litigation supported and did the district court explain its thinking and making the determination that that it made and other words it seems to me that all of a sudden he just came to the end and and made the ruling without really fully exploring what your argument is what what's the problem with the complaint or what are the admissions within the complaint never put that together and they and  viable theory for his decision that he identified the factors and it identified some of these facts that i've mentioned i don't know that it did involve them all but it's on page eight most nasdaq this was an argument that was raised or an issue that was raised by the appellants and we responded to it but doing that it supported what they need does and what the letter requested that they need doing with the opponents allege that he did do and the result that happened after evaluating this evidence so that's how the nasdaq issue came into this picture was any part of the california law require that the agency actually be independent would it make a difference in this analysis if the agency were actually requests in practice always follow the direction from say the executive branch leaders without regard to investigation or hearings where that make a difference under california law as to whether it was quasi judicial or not i think your honor that hasn't been noted  i don't know that it does make a difference because the protection would be necessary for someone as this is still very case cites in the pickton case that it's the protections for the litigation privilege are to not chill somebodies communication with a public official or a public entity judicial proceeding to have them identify potential wrongdoing and remedy that wrongdoing the independent nature of that i'm not sure that plays into the policy for the litigation privilege at all but again the privilege doesn't apply by its terms to communications with simple public officials who don't exercise quasi judicial functions well it's in that particular one particular section that we're relying on and raised that's correct is this is the state litigation still pending a state litigation in which the there are a couple of other items in our brief that i wanted to just touch on briefly one of the issues was the notice of appeal from the appellant's identified the motion for reconsideration as one of the aspects of their appeal al they did not brief that and it looks as though they did not pursue that and under the case law that would constitute a waiver of that claim we also have a argument that the appeal was  i think that's been fully briefed i don't necessarily need to talk about that too much with my time i have left but i did want to mention that as part of our arguments today that we appeal was  timely and the court's order on a motion to dismiss constitutes a judgment on the merits and there was no uncertainty as to that the issue that's come up and there's no dispute that  judgment on the merits final judgment on the merits there was no leave to amend the issue that's come up is whether or not there was a separate document under rule fifty eight as to whether or not it met the separate document criteria we've twenty third and the appeal was filed one hundred seventy seven days later in violation of federal rules of civil procedure before there's also a waiver argument that's been about the separate document that's under the casey case that we cited and so the arguments regarding an untimely appeal are that they were people within thirty days they didn't do that we believe we've satisfied the separate document requirement under rule fifty eight and even if we did not satisfy that requirement the district court didn't satisfy that requirement under the rules under the p c case that we said it was a waiver because they filed a motion for reconsideration claiming that in their motion for reconsideration that they knew it was a final judgment judgment on the merits and therefore away their rights to have require a separate  there is nothing in the complaint that says at the end he conducts an investigation nothing in the complaint that says that any if you hold hearings nothing in the complaint that says that the any e q applies rules of law the paragraph in the complaint that mr osborne just cited as judge bennett has pointed out refer largely and quote from the unsolicited letter that mr adams himself sent to the ne q they don't say anything about the process there a reference to the surveillance department of the any q there's nothing in the record about what that surveillance department is what it does whether it conducts investigations whether it holds hearings so technically i thought that you had  not pursued an appeal on the motion for reconsideration is that correct this seems to be some confusion on the other council i think clear that up your honor when we filed our notice of appeal we did indicate that we were appealing from both the motion to dismiss order as well as the order on the motion for reconsideration as we were thinking through the arguments for our brief in our opening brief we did focus solely on the motion to dismiss order and are not seeking this court's review of the  a motion for reconsideration since the court refused a motion to dismiss order to novo it seemed superfluous to challenge the decision on reconsideration order just briefly let me address the timeliness issue the district court to may twenty second two thousand and seventeen order did not constitute entry of judgment because it didn't comply with rule fifty eight separate document requirement this court's decisions have been very clear that if an order contains the court analysis legal reasoning it cannot also constitute the separate document that is required by will fifty eight there have to be two different documents that didn't happen here the district court never entered a separate judgment we followed the rules to the letter and deciding when to file a notice of appeal in your motion for reconsideration you you basically said that this was a final judgment at least according to the other side to necessarily suggest that that necessarily constitute a waiver but is that a waiver so that's actually not correct your honor if you look at the record in the further excerpts of record at page three we brought our reconsideration under the court's inherent power to reconsider its prior orders it was not a rule fifty nine motion was not a rule sixty motion and when mr adams argued in opposition to that motion that it was untimely because we hadn't met the timing three we said here the court has not yet entered a judgment this is not like the k c opinion in k c this court said that the appellant specifically moved for relief from judgment and the court said that the appellant indicated an an ambiguous believe that a judgment has been injured that's not what happened here we never said that a judgment had been entered on may twenty second two thousand and seventeen we knowledge that the court's order was final but that's a different question from the date on