criticized you or at least you know at the end of the day said to shy think she said you should have come sooner so that would have been your opportunity right to come  how i understand that the answer may be that you thought that even if she rejected you to all your motions in the alternative you'd have an opportunity at that stage to come in the motion but i don't know  that is correct your honor a couple of points number one in the district court's decision i just want to clarify one thing for the record because in the district court's decision denying coder's rule fifty nine motion to alter and rule fifty motion to amend the district court says the code had an opportunity to amend when the district court denied codice or motion for some reply that is not true there was one opinion and that opinion dismissed the inventor ship intrinsically dismissed code as complaint complaint or you don't and putting in simple there's a number of cases that say oh in the alternative we like to move that's denied right and left unpick twenty one of the redgrave good years says that according to the two thousand and eight revealed your daughter that's a mischaracterization there is a video and it is on coaches website and there is a prototype in the back that you can't tell anything you can't seem to think it's small and in the the motion to dismiss was handled and that's that that's really in this you that's a factual issue that the first opportunity to really address that is after discovery and on summary judgment or a trial right from just looking  in a number of claims so we very much streamline the case down to the inventor ship claim and the trade secrets claim that's really all this that's really all that's left and it's still the same core set of facts right  it's still the the the case is still about coda and good you're meeting good you're not having anything with sci fi going on and then right after that good years following for patent applications so that's still a core that i clarify if we agree that perfectly acceptable defendants are allowed to move to dismiss amended complaints as though they're allowed to dismiss or original complaints what we think would be improper however is to repeat the same mistakes so for example on the inventor ship claims and the treats trade secret claims we don't think it would be appropriate to go another round and have a good year come in and argue on a motion to dismiss about the merits civically about whether code or straight secret things were publicly disclosed so while we would like to because there's so many complaints i thought that if the problem you had with what the district court did or how things went don what you were clearing them in a motion to dismiss from raising all the stuff in terms of the planes in the i thought the concern was that they had only come in in the reply i think and therefore you didn't have an opportunity to respond to my misunderstanding it seems to me like now you're kind of getting involved with what they could don't think i don't know if that's ever happened i don't believe it you know it's not appropriate it just doesn't happen and the reason is because you're getting into the merits on the motion to then you're going to want to do discover you don't want to be discovery and there's a number of opinions from this work that points out that it is exactly this sort of analysis comparing you know a pattern or intellectual property and to the prior art that requires expert analysis that's exactly why we supplied with our amended complaint an expert declaration from dr plot it's also why we supplied a factual declaration from mr probable these are not and all those issues are the issues you're going to have to get into to determine whether or not exactly why we were floored when we saw the reply so there must be at least in their view distinctions between your trade secrets and there is but we don't know any of this and it's not at issue for motion to dismiss it in you that's a and pushes against the rim which is a another very rigid member those physics are different than when you move a pump to do what's called the bin to up more up in the side wall in the middle part of the side while the tire there the rubber moves in different ways and mr problem was able to with the tube in that area create sufficient pumping pressure to imply to tire where that wasn't the case when he tried on the rim that was  first in a ration so the article is about his first iteration which he could never get to work putting the two down by the rim in the prosecution history the five and six patent good here distinguish not one but two patents that had to be on the on the ri very briefly how i intend to structure my argument because that's the first point i want to get to but the first thing i want to address is the possibility standard of one million it but we didn't hear anything about that in my friend's opening statement here and that's exactly why this case was properly dismissed the original complaint was properly dismissed the other two points i would follow is that under sixth circuit law either allowing the motion to a med when they didn't ask for a motion to have met before judgment is an abuse of discretion standard and it's not an abuse under system and it's certainly not an abuse to deny it after judgment again when it wasn't asked for during we have a set time that this was a little you know it was a little difficult to anticipate that after they were to not there's a motion pending before the district court judge which was that and for nine months almost a year maybe and then as your friend pointed out much you think you can tell us he's wrong she simultaneously granted the motion to dismiss at the same time she will down the motion as a procedural matter she just press he's exactly right but what i will tell you that he's wrong about is this notion that they didn't have an opportunity to amend it let me give you the only first i think i haven't yet answered judge wallace question that there is nothing and in fact that was what our motion to dismiss was based on these contradictory conflicting allegations and sixth circuit law the case of bailey versus an arbor set internally pleadings make allegations implausible we sent that to the district court and they did that and osing we read it is not internally contradictory well i'm not sure how you can read saying things have been tire for pete it can also be created while keeping the considerable portion of the design advantage just anywhere else in the long haul or at the wall of the tire so their own patent says put it anywhere in the wall it will be fun so they've already disposed of the world everywhere in the world everywhere in the walls ok this is not a trade secret they wrote articles about it that's what rape article said they wrote articles about the room at that's what the video shows they're not there's nothing secret here and all we did from good years perspective is to say in our motion to dismiss these are implausible now and once we start quite sad and well at least your heart wasit but if i can come back to the plausibility problem this is the first opportunity you don't have to wait for a court to tell you that your claims are bad before you get to a met you don't have to sit around and wait for that because that's our that's the first opportunity that they had we told them that their claims were implausible and they decided to double down and they said it in its in its really sort of noxious honestly when you look back at it they said you well we certainly did that in the main point was with regard to the trade secret allegations we're trying to show look there allegations are implausible and look at all of these things that disclose these things that are within what they're now claiming  did i think that's a page eighty eight ninety seven so what i meant what i think you have here again i want to get back to that this notion that she just crossed that they did not have an opportunity to amend them somehow or another  trade secret case and says my secrets are all of these things in the defendant comes in and says well you've just contradicted yourself six ways from sunday in this complaint we don't know what it is that you say we took and that you had motions for more definite statement well enough in if in effect we didn't make that motion but in effect we're saying that we don't is that you don't meet that the twamley all standard so dismissed that you've got an opportunity that's exactly what rule fifteen allows within twenty one days sensible you have an opportunity so i really that that i want to make clear they had an opportunity to amend at that point instead decided to double down and say good your nose what it took well first of all that even if we're talking about the sort of bear creek family notice pleading that we all learned about it law school where putting you know three sentences in a complaint is enough and that's not enough after possibility standard but even if that were enough saying you know what you did is is it's innuendo it doesn't give us spare notice because quite frankly our position is that what we did is to invent something and that anything that we learned from ko a least an opportunity to respond by saying ah that's not secret or that's something that you actually disclosed in your own judicially noticeable at and you get rid of expensive litigation at the outset because you know what's going on that's why you have motions for more definite statements well the fact of the matter is that our motion to dismiss for all practical purposes should have been for them a clue that they needed to amend if they had something and and i think well used the term of not just that's a that's a word i'm not prone to use so but that but i chose carefully here because it really does sort of say it's in you endo of the sort that you go this isn't this is not you know i'm not going to tell you what you did but you know you did it and you're guilty of it and somehow or another all of a sudden it's our burden to unplayed there in un though that's not the possibility standard now if i could just turn very quickly to the other two points about the post judgment motion to imette sixth circuit like your forecloses the relief that they're asking for both of those are abuse of discretion standard it is having to defend and invest extensional amounts of money against a complaint that was not properly made was not properly amended at any point when it is that it lets us on and continues to put a cloud on to this  but let me just make sure whatever but every level of defense i say well it's maybe it's not special prejudice but the fact is that they could have a limited this prejudice by doing things properly and it depends on which want to make sure to get across to the court the two sixth circuit cases where that can i ask you what we asked your friend is there anything you would object to and then now claim forward with the amended complaint or are you going to hold them to the original complaint which we now  insufficient i think the answer is that we if i understand the hypothetical is the case gets remanded the that that would be that there is you would say that there is a valid only played complaint here on the two sets of claims that they've still got going forward that when effectively be all that you're doing ben i think it's up to the district court under that circumstance to decide whether the rule fifty nine do i have that right so why would it whether whether going forward and saying well we'd like to go forward with the amended complaint i think then they may have to we'll have to make whatever showing is appropriate in that circumstance to show that they are entitled to amend this point and you want to hypothetically give us the arguments that one would make again that question and you know the hypothetical i don't think i don't have any idea that we would have any hypothetical arguments if we were on simply an interest of just a standard at that point it might very well that if a party does not file a motion to amend or a proposed amended complaint in the district court it doesn't say before judgment it says in the district court then it's not an abuse of discretion to refuse leave to amend code it didn't file in the district court file post judgment and if you read ohio police and fire it expressly says plaintiff has three opportunities to amend once under fifteen a one as a right within twenty one days of seeing a motion dismissed to win freely after that if you don't take advantage of you as of right period when justice are required and three citing more sweet water the case we rely on after final judgment but before people under will fifty nine moving to alter the judgement in exactly the way we did page thirty three this is the beginning of good years appeal addressing the minimum issue the first thing they say is this default rule they say it right they have to because they're quoting it and then the brain expats they switch from  a district court you have to do it to before a judge and sleight of hand did it three times appear at this podium and it's wrong and that have to be attention to because their primary case they rely on since you get to do it in a district  allegations there is a southern district of ohio case rex and southern issue of all of ohio but it is construing the ohio trade secrets that statute williamson be rex and beverage can what it's and it was  motion for a more definite statement there way of simply did a unique and highly valuable process for welding metal seams using ultrasonic welding technology that's the trade secret allegation that was held sufficient that was the issue is that sufficient and yes it was held sufficient added to that and by the way code identifies four categories at exactly that level of specificity of specificity so not just where this is alter sonic tech welding technology generally go to identif relevant on a twelve b six the court misconstrue the complaint in the light most favorable to the numbing party accept all factual allegations is true make reasonable inferences on behalf of the plaintiff the court's in fairies limited to the content of the complaint et all beef that we're going to have through the course of the case and the parties do have in the course of the case this is them have them on the motion for for twelve the six and i think the other thing this instructive about food is when you're saying we're defendants an argument suggesting that plaintiff must defend all possible factual disputes in his complaint goes well beyond any required standard for putting allegations in the complaint itself so what conan actually doesn't have to do according to controlling northern district of ohio law zuma twenty fifteen decided to months before we filed a complaint we don't have to pre book it in a sense all of the years arguments that they're going to