absolutely zero connection between these two allegations and not on that basis dismissed my complaint with prejudice i dismissed with prejudice on a twelve b one motion is an abuse of discretion all other issues on this appeal must be judged on the din of a standard my st point is that the a b a protected and indorsed and accreditation fraud that i have vested in me of all of my legal rights against the state of new york i have never called upon the a b a to take any individual action on my behalf i only asked for it to maintain its own of general application but instead of protecting the clinical faculty as it is legally required to do the a b a protect the law school by authorizing it to operate with fraudulent contracts and fraudulent to process rule i relied on the a b a to keep the clinical faculty standard in place so that i could seek to enforce my legal rights through the judicial process that was its promise to the u s department of education as well as to the clinical professors who entrusted their reputations careers and livelihoods the integrity of the a b s accreditation process but that one crucial thing however is just what the a b a has refused to do my nd point is that the disher court was clearly in error when it will do my damages for now fairly traceable to the a because of the independent unlawful actions of a rd party not before the court to the contrary the dean of an a b a accredited law school does not have the independent unlawful authority to terminate a tenured professor without due process former de suggested which seem to have offended the district court but if the a b a believes that a rd party is responsible for the balance of my damages that it can imply that rd party under rule fourteen and the district court seem to have taken buffalo through it thinks harris responsibility well that would that would end run what the litigation in new york wouldn't know because i was and that was an entirely different cause of action this is a fraud claim that was a due process claim i did not even know that i had a to award contracts of more than three years i remember that part of it but i don't remember the part where they said you were the victim of a fraud well in other words i mean the inference is that i was holding a fraudulent contract and relying on fraudulent due process which was a how to i had a contract that said it was a or a statement in the nd circuit opinion that says that i don't the nd circuit did not use the word fraud that's true but i don't think there's any other way of reading that that's the way i don't address i don't understand i mean let me put it this way i don't know how i could possibly have wound up in the nd circuit with a worthless contract my contract was a worthless piece of paper it was supposedly a full that's that's that's the core of your issue in that litigation that's right you just didn't prevail on it that's true i don't know how we fixed that because this is a this is a different claim this is a fraud claim that was a due process against an entirely different party it's true it's true i mean it's a i did not know that the a b a was worse was responsible for authorizing suny buffalo to go forward and give out fraudulent contracts to maintain fraudulent due process rules to file fraudulent accreditation proper reports over a period of more than fifteen years until the nd circuit told me but i had nothing and it was the a b s responsibility through i'm not saying that the a b a was responsibility for breaking my contract terminating my employment or any of that the only thing i said that the  us opinion talks about plates of conceded that he did not require any further amendments to to his complaint has ever made the case now and your honor i think we had a that i did not understand that this is your court said go you know come back at a later date and amend it i thought the entire motion to dismiss on the subject matter grounds was thorough frivolous and i said i want to proceed i want to move this case forward i did not understand him to say that if i decide this case  do if i dismiss the complaint i'll close the case on the same day and your and your waiving any were right to try to amend it and any rights that i otherwise would have had and so the answer is no you know we had a misunderstanding i misunderstood him or he misunderstood me i can tell you right now that i did not waive my right to amend the complaint that completely took me by surprise all i said was today let's decide this month and what would that of that would be the amendment would be that if you did he doesn't he seems not to understand what my damage claim was because he said my damage was the stigma of for cause terminations and my claim is that my stigma i mean my damages were the divestment of all of my legal rights that i had in th student and you know if i put an f on on a student's paper they expect to get one be right like maybe i didn't express myself clearly maybe he didn't understand what my damages were so maybe i have to move to paragraphs around and i think in my in my reply brief i very clearly show that these were my allegations and that the district court did not understand the allegations in my complaint nor my attempt to clarify them in my response to this motion like my motion papers but if that's the case i would like to come back and do a rewrite i mean i don't think anything would substantively change i think everything was in there but if there was any confusion or misunderstanding i'd like to have at least one amended complaint to make sure that my case is actually heard that i actually i'm going to process w horowitz your honor may please the court the district court was correct the clued but there is zero connection between the allegations of injury that mr of ma can set forth in his complaint and any alleged misconduct on behalf of the a b a now in his complaint associated with that terminations being for cos that's how we understood the complaint but he says at page nineteen of his brief in this court again that's not what i'm blaming the a b a for that's not the basis for my standing in this court so what's left then is the allegation of a last in the st place or declining to sanction a law school for an asserted violation for a fight see could change the process that mr malcolm received or didn't receive in the nd circuit and in the western district of new york the article three judges that comprise those courts make their own decisions entirely independent of the a b a we have no control over what they do what processes they afford to litigate likewise we have no control of the attorney general of new york making whatever arguments he wants to make on behalf of the law school in those forms has asked you to focus on the i know i i understand why very articulate as to why you'd like this dismissal to be with prejudice but you know the fact of the matter is we have we have do we not in article three standing dismissal that hasn't touched the merits of this and i took a look at ike i don't know how you want to pronounce that but i took a look at it seems like a very different a very different circumstance does it not in the concern that i have is in the ordinary course when we have an article three subject matter jurisdiction dismissal you know that's without prejudice now to be sure mr malcolm proceeds in his own peril in the district court and as he so chooses but isn't isn't the ordinary course for the dismissal to be without prejudice to the short answer is yes and i want to separate out the question about leave to amend from the question of whether in circumstances like this where there was a dismissal it says it's with prejudice really should have been without in typical case it's very simple as in lent and miller to simply modify the judgement on appeal to be without prejudice and affirm the judgement as modified those are the other two cases  that twenty eight dollars a letter if that's the simplest course for the court to take we're perfectly fine with that we also just noted that in some circumstances as in the aker a case the merits and the standing inquiry are so closely intertwined that may not make much of a blakey after we filed a motion to dismiss but before we came in for the hearing that mr mark and referred to directing mr mock into his standing order and motions to dismiss were just like he sets forth his procedure which is if the defendant files rather than having a regular rule about an amendment or not amendment in various cases i'm just going to ask that you come in the plaintiffs come in and be prepared to make an election if the motion to dismiss looks like the sort of thing that you would add allegations to cure in response to then you should elect to amend it if the if you don't think the motion this makes any difference or frankly if you think that there's nothing that could cure the problem that's been identified you can stand on your current leader that's what the standing order says he was directed to it before he flew out to chicago for this hearing and then he came in and just like asking the question got the standing order what's your position i'm going to stand on my feet i'm going to stand i'm unlikely to so it's not a lack of notice for mr mark and he had the opportunity to make his decision for coming out and i understand that he had to travel but he could have contacted the courts deputy and just said right up front you know we should probably cancel the notice hearing because i'm going to amend but we can't do is wave the right to amend and then come in on appeal and say there was some  filling in given the opportunity now separate from that the court gave him an opportunity today to explain what are the allegations that you would add to overcome the problem he didn't identify a single fact all he said is move around some paragraphs try to make it clear what he was allegedly well respectfully i think the complaint is sufficiently clear that there is no can there's no connection between the injury and the a b s conduct and in fact today mr malcolm began his argument by saying he doesn't think the aviation have done anything individually with respect to him this is something brought about how accreditation is supposed to work for clinical professions across the country respectfully that is not a concrete dispute between parties with adverse and interests that is not the kind of case or the for cause terminations in fact that allegation is in there so that i could explain the context of my damages which is that why didn't i mitigate my damages there was an underlying each of contract an of contract claim you have to explain why you're here why didn't you just find another job and the problem is that standard four of five c says that if you're terminated every other law school is going to presume that you were terminated for cause and that was the context of my i'm not just making some kind of general claim about the a b a failing in its duties to everybody i was relying on the a b a to keep the legal framework of my rights in place that was it damage to me individually i'm alleging that it was a all of my legal rights that i was relying upon i would never have euthanasia yes i would never i would never have accepted a job at suny buffalo law school with a four or five c protected contract if i knew that there was no for a five c so that's why my primary claim claim  promissory fraud i'm saying that accreditation standard is a promise of future performance upon which i realized it led me into a trap of accepting a job that was really nonexistent job job and that destroyed everything i worked for my whole career my