next case on for argument is montauk usa versus one forty eight south emerson associates his counsel is here today meyer is not a party to this action and second that the court erred in holding that to georgia cases one federal one state were sufficient basis to dismiss  he could not for the following reasons you are there is the most basic constitutional concept of standing and federal procedure that the only person who can get relief from a court is someone who is a party to the proceeding this case was filed by mo first of all on the federal rules of procedure rule twenty three covers derivative actions it only provides for the filing of a complaint it does not provide for defensive through their actions so therefore effect preclude you from doing what you wanted to do as a player you really could he have brought an action no your he couldn't do any of these things is as a derivative claim for the following reasons a derivative claim has certain requirements and because he didn't use intervene within litigate these issues the requirements are a derivative claim it doesn't mean that if the receiver here decides he doesn't want to do something they automatically get to jump in front we all know that the question then becomes is the derivative is the receiver's actions consistent with the business judgment rule if it is you don't get to sue derivative li either is a plant or a cynic in receiver as a better business  judgment consent to have my or bring the represent represent the company exactly ron he cannot because because as a matter of law he is not a party to unless he intervenes his he cannot  a derivative matter say ok you can swap me any more judge than if a husband and a wife and that's really what we're dealing with here is a business divorce or been a problem here is the receiver had said bring the lawsuit you tell me which lawyer and you pay the fees and they reach an agreement there would not have been judge i would not have a problem there would not have been a problem but that is not is i was materially different from its materially different judge because there is no prop actual party in interest is not before this court and wasn't arguing before the court below just like your honor if a husband or wife and this is really a divorce either was a party in interest of theirs sievers interest or be protected receiver by this lesson the receiver the receiver represents the company the company can only be represented by its own lawyers the receiver cannot say hey joe blow you as an individual can represent me mr caterson here is not here on behalf of the company he's here on behalf of mr meyer who is not a lawyer and who is effectively coming to this court is a stranger to the proceeding and saying even though i haven't done anything to join the proceeding as a party like in the plaintiff's action the did the ribbon the plaintiff is a party they are at the top of the caption it's john doe derivative lee on behalf of this corporation this is a bizarre procedural posture that  one i've come up with is i suppose that they could have said the alternatives are if the receiver had said i'm not going to defend the case because i don't want to or i'm not going to defend money party in interest has to be the actual party and there has to be a party mr caterson still does not represent a party to this action and again the actual facts that occurred here your honor are as follows the receiver said i don't want to do it you do it and as i was explaining your honor of a husband and wife i don't want to do it and they were having a fight and he was saying if you can't do it or don't want to do it then i will you go to court and represent me i can't i don't have standing to do that so he doesn't have standing to do that he doesn't have constitutional standing he doesn't have standing in the federal civil procedure he doesn't and that is exactly what and now now that judge has the first case we could you know reinstate them let them consolidate you know what your honor you are as a practical matter your honor we have to be able to bring our lanham act case somewhere yet it has now been transferred back that the actions in georgia which didn't involve that claim and that why the dismissal here was in error i now hear we've made a motion to a correct joe so we've moved to amend to join the lanham act they've not they would not stipulate to allow us to amend and so we're in limbo here and so the reason this claim should be restored the cases that were brought in georgia were in georgia because of a license agreement if you look at page forty one of the record which required cases under license agreement to brought be in georgia the lanham act case was brought here for events that happened after the license was terminated so entirely different events for friends meant that how you can bring a lanham act clean while a license agreement was in place when the rices going was terminated things went forward there was infringement and the infringement claim was brought in the eastern district because there was no forum selection clause to be in ga we had to bring it here where we had jurisdiction so this is anybody contesting the jurisdiction of the eastern district good thank you thank you and you reserve one minute mister  cases in the brief that while initial nap shot are probably an accurate assessment of the law as is recited in the cases they have nothing to do with this case we don't have to show in any way shape or form that there was negligence fraud or bad faith before we could derivative li represent one forty eight south emerson's so see it's the only reason for that will is this court is aware is when a board of directors of a corporation either declines to bring suit or won't continue a suit for somebody to intervene derivative lee they need to show that fraud negligence or bad faith to overcome the business judgment rule that's the test in new york and it's the test in the circuit here though the receiver has exercised the business judgment rule to say and it's it's set out at length in the opinion of the court below it's the business judgment of the receiver that the grotesque cost of all of these litigations can't be borne by the ongoing business of the sloppy tuna that if meyer will step in and defend the case and bear the cost the receiver will consent to that happening the receiver has no issue with that when the receiver submitted that declaration to the court on certain reply usa represented that the receiver defaulted that the receiver didn't want to defend it the receiver thought it was a waste of money the receiver submitted a declaration explaining what i just represented to the court judge feuerstein in the exercise of her inherent powers to manage the case and equity jurisdiction said all right i understand that the business can't afford the representation that meyer is ready willing and able to defend associates in this form and the court let meyer appear derivative lee on behalf of associates there is not a single case cited in my adversaries brief that would prohibit that in any way shape or form the one case they rely on is crane a g it's a two thousand and eleven first department case it's an opinion by justice mcguire in that case they said the court said that there could be no derivative action in an l l c because the operating agreements of that l l c said there must be unanimity on all the shareholders before any affirmative actions could be taken on behalf of the bard by the agreement the exact opposite of the agreement in this case the exact opposite the agreement in this case the operating agreement for one forty eight south emerson associates like one forty eight south emerson partners and powers each of the members to act on behalf of the l l c it is the exact opposite of the case my other server logs on my adversary also says that there is an inherent conflict of interest in having my or represent associates derivative lee because meyer is a member of one forty eight south emerson partners the company that owned the real estate moved to a victim associates in a related proceeding judge fiercely remarked on this issue i suppose it for only when she was going through the tortured history of the litigation here when she noted that darshan has done exactly the same thing he sued derivative lee on behalf of associates and partners he sued opposing counsel purportedly for a slanderous statement made at a conference in chambers of course the penalty for that was doctor and his lawyers not mr b course were both sanctioned fifty thousand dollars each for that case but doctors done the exact same thing and it reflects that fundamental principles of law that you can pursue a derivative claim simultaneously with a direct claim against the corporation it's black letter law in the first department state law controls that issue i believe but it's also black letter lawyer in this circuit that you can pursue both a derivative claim and a direct claim against the corporation may be counterintuitive but that's the law in this department so there seems to be out there some notion i just would appreciate learning your views on this that there are in order to bring a derivative claim or this circumstance you defend derivative shareholder needs to step in and take care of business so disabuse me of that that's where i disabuse you or not is it is a different issue ok that is directly refuted by the posture of this case i agree that that's the standard that's when that's when the when the company of the directors of the company are at loggerheads with the shareholder and refuse to get along and they refused to pursue the the thing claiming it's their business judgment to to  decline the decline the representation declined the lawsuit that's not we have here no judge it's actually the polar opposite of what we have here the history of this case is ten lawsuits across three jurisdictions in three different courts state court in georgia federal court in georgia state court in new york it's been to the appellate division many times on emergency applications mr bo client is a serial form shopper there's no two ways around it and the record that judge feuerstein laid out at the beginning of her opinion demonstrates that just discard too low entered in order  record that doctor was not to interfere with the operations of the receiver in any way shape or form not reaks went by before he promptly filed the case in georgia in state court in fulton county to do exactly that infringing on our marks we've sent a cease and desist letter to them under the license agreement which is now void by the way found void by justice kargil oh and we need a t r o at the beginning of the season in and sixteen as the receiver was about to open the sloppy tuna restaurant bar restaurant kid bar judge godor said no you've been ordered not to interfere why don't you go back and ask judge ever since he entered it mr boies klein has done absolutely everything possible to interfere with the receiver shut the beginning of the seize the files the georgia state court case the t r o is denied he then runs up to the eastern district of new york  the action wire makes the demand on the receiver to defend the receiver i won't repeat all that dialogue about the receiver saying no he then moves on the friday of july fourth weekend just like the beginning of the season for the sloppy tony he moves on the busiest weekend of the summer mr boim moves for in order to show cause for front judge furiously on the exact same relief he sought in georgia to shut down the sloppy tuna by preventing them from using on friday of july fourth weekend a no notice to anybody except the receiver less than twenty four hours notice no noticed us is a little getting against us for years no notice to shut down the sloppy tuna by saying it's an infringement of the marks this is a wholly created set of facts so when we go back to the first filed rule there are no new facts here there's no new claims the whole claim is who has the right to the marks that's the only claim the lanham act claim the infringement claims it all devolves to who has the right to the marks there are no new claims here other than those ginned up by mr merola in georgia when he sent that phony demand letter so  what is the problem with just the judge with the eastern district now picking taking both cases and district court has that has the case as the georgia case now yes judge and that raises the district and for consolidation purposes and dispensation of one sort or another i would suggest judge that i rarely get to use a holding so alliterative that i can't pass it up it's in curtis against citibank it's a decision from this court in two thousand the court said plaintiffs have no right to maintain two actions of the same subject in the same court against the same defendant at the same time well if they have a different playing what about that i mean they're claiming a and lanham a infringement judge if you really thought he had a nuke if you really thought he had a new claim his remedy was clear he could have moved at the time to amend the northern district of georgia case to include is if you really thought he had a clean instead he marched to fulton county to file yet another lawsuit he could have after he lost infocom county he could have asked judge me in the northern district of i c my lights on if i could just f he could have asked trudge me to lift the stay by the way he appealed that stated the eleventh circuit and last that he could have asked judge made a lift to stay so he could amend his northern district claim but instead he filed a third lawsuit this man is a serial form shopper judge and there is under all the circumstances i mean it is rare that we sort of engage in this kind of post parsing of what is of the ping pong that has been going on back to  spinning off of judge walker's questions why doesn't it make sense to remain on this to the to the district court with some instructions and guidance from this court and have judge first in sort all this out and allow you to make the arguments there that you're making  would suggest judge that that would be rewarding him for filing an endless series of cases about the exact same thing that's the first thing but there's no reason to remain in the because the northern district case is in the eastern district now there's no reason to remain that and doctor has moved to a man his northern is now eastern district case he's already moved to amend ok thanks judge thank you note that motion is is subject to see is it's not even fully it's not even fully br know ok thanks your honor very briefly the concept that these are not different names is absurd again the claims were filed in georgia were filed in georgia because they were filed under a license agreement to enforce that license agreement when that license agreement was terminated by us and they got it terminated otherwise by the court it ended when he says we have no new claim we have been we have  had over a year where that trademark has been used as a registered trademark it has been used the license agreement is irrelevant because it doesn't exist anymore so what claim would we have that's new the claim we have today for infringing that mark on the amex we have we have a duty issued trademark and obviously today tomorrow or the next day and as long as they use that trademark without authorization we have that claim obviously it is a new cla with respect to the derivative point your honor again i agree with counsel and your honor the fact is you asked me why he couldn't bring claim your honor and we talked about that the fact is this is not a derivative claim that is a this is a claim where it where essentially the receiver has said you go and do my bidding and i'll just ask is a closure honest to have you considered this if you were trying a case and you required parties to be at the table for the trial and in fact the party didn't show up someone else showed up and they brought their own lawyer and they said well we're going to be responsible for this case we all know that would not be proper because that person is not a party that person cannot make decisions nor can mr meyer or caterson in that case they can't make any decisions because they're not the party the receiver is and he's not there and neither is his lawyer the party to that case isn't there and the party to that case is not in this courtroom before you and that is not constitutionally proper or procedurally proper thank you very much