is obviously are well aware of that but i think that the words that she used were particularly important here that what's required is for haga see to seek the terminations the parties rights claims and specifically by requiring proof of something more than a desire to litigate issues that were right for review the district court of uses discretion by applying an incorrect standard and i think that's particularly true in this case because what judge blackburn essentially did was short circuit all the procedural and legal issues that should have been considered i think you can tell from the briefing this case that the history of this case and the conduct of the parties involved is extensive over a long period of time it's only complicated factually but it involves a lot of different complicated fact issues i don't believe that the court was aware of the full history of the case and i know that there were complex legal issues that the court did not consider or did not fully reopen the case as i think if you go beyond the standard that judge mchugh espoused and patterson everything that follows from that requires some factual and legal terminations which is not appropriate in a motion to reopen a case which is nothing more than an also to add additional claims with respect to continuing tort theory so by denying the motion to reopen and then finding move the motion to amend the complaint he cut off any ability to make these legal arguments for example if he had tort doctrine is that something that needs to be looked at if he had done that that would be different because the law here on continuing support has not been settled the cases that he cited were trucking equipment in the employer sp continuing tort and i believe that judge blackburn has entertaining this in a proper manner and not a misread emotion he would have found that but let me my thought i think i missed the point that you originally raised the fact that something might be in the public domain does not cut off a direct this is in the public domain which makes it impossible for someone using it to be and justly enriched by using it well that was a conclusion of the court of appeals and that decision was based on the judge that wrote the opinion honor that decision no i don't think that you are because the weekend we this panel can reverse the colorado not asking for that job for asking to do is to accept that finding and apply it to the claims that we brought in this case judge this issue about in the public domain for example what the torah court of appeals did was add an additional element to the colorado trade secrets act which is not there which is to prove it's not in the public domain that's not in the statu they found that and they found that based upon at an analysis which council is going to get up and argue against a and i would i would only submit to that intellectual property law of hatton's is considerably different and has a lot more protection  trade secrets which is more of a contract right or a right given somewhere else you asked about unjust enrichment you know it's before council before you get there i make sure i'm understanding what you're saying so here's what you said are  asking us to second guess or somehow do something different or even overturn what the colorado court of appeals did and you said no but then it sounded like you're saying but they were still wrong and you're it my understanding that what you're trying to get us to do or what you maybe plot at the district court to do was to consider your arguments about why you think there's still a trade secret in order to make some kind of equitable determination as to whether your conversion or an unjust enrichm i'm suggesting that we have a ruling that you are bound by that this mud drill is in the public domain whether they're right or they're wrong whether we would agree with them or accepting that it's in the public domain you claim fails it would have been futile to reopen as for that in understanding the judge there's two important points yes the court of appeal found it was in the public domain although the actual evidence of the colorado court we have no power to do anything about what's happening colorado state court ok so judge the second part of that answer is yes they found it in the public domain and so they knocked out trade secrets but critically have held the conversion plaintiff finding that this design even though it was in the public domain had been converted and the damages we're uphill so you get you're going to take one of their findings you have to take both a letter that needs just to the next point which is you're seeking new which is exactly what judge had one did following the three filed he denied my motion for an injunction but said you're free to bring a claim for future damages we all had the council wasn't that concerning the trade secret it was it was but it doesn't mean that it wouldn't apply to other damages as well well say wait wait wait wait wait the court said that you could do that with the trade secret claim it didn't say anything about the other claims well that's because the injunction that we bring a conversion course in just enrichment klein and a breach of contract claim a second proceeding where did it say that didn't say that just because it was in the context of a motion for injunction under the trade secrets that's that's where that was and we also have the issue of them failing to provide damages which i don't think is relevant here what is really important is that if you if you don't overturn this you'll be overturning drug mchugh's opinion i mean if as judge matheson said if it will be futile how can there be good cause and what and i'm sorry what i'm suggesting to you is if you go down that road in a district court which let's just be candid about it is talking about the court of appeals what they found a conversion is an ongoing tort or not because it's because it's a design these designs have no intrinsic value judge blackburn focused on the on the possession of the design again we're talking about what the colorado court of appeals said no no we're not we're talking about judge black or interpret in water motion simply to reopen a case my point is that the damages the continued use of the design where they're making money today all of those issues should have been considered by judge blackburn in a proper setting properly briefed hopefully hearing if not a hearing there would have been discovery on some of these points but your contract on your contract i mean why shouldn't you i mean the the the law claim preclusion provides that you you litigate all the issues relating to that klein in the judge the promise not to use the design is like a covenant not to compete it was reached the day after the trial ended when the when they continued to use the design we could have known that in the first trial we couldn't argue for damages there because we don't know that and we don't know well so you asked for it and you didn't get it but that's the first proceeding judge says you can bring another case for ongoing damages but not on the contract well the contract was not reached until after the trial ended the lovelorn case and the other cases w stand for the proposition that if there's an if there's a second breach after the first case file that's a new plane for for for breach of contract here the continuing use is a violation of the covenant that it wouldn't be used it's just like a covenant not confused in reviewing the district court's order denying the plaintiff's motion to reopen the case this court must proceed under the ethical standard review use of discretion this theater deter choir's consideration of the good amendment of the complaint act we filed for smoking smith they tried to amend around a motion and so when you make a motion to file a case to amend your complaint a second time you're under the rule fifteen standard which requires you to show that there's good cause for amending the complaint and good cause remanding the plain is that the claims are not futile and so the district court in determining whether there's good cause for amending complaints amendment complaint well there's a there's a sense in in the appellant's argument that the way in which the district court handled the motion to reopen in a way of skip the step that is the proceedings in the colorado courts had ended that was the reason to two administrative leave closed the case in the first place that reason w so there's no reason to keep it close and then it seems as if what happened is it was almost treated as a motion to dismiss within the nested within this this motion to reopen but don't the federal rules of civil procedure contemplate a real motion to dismiss with robust briefing an argument on both sides and and i'm understanding t argue that they really didn't get that chance out how would you i'm asking you to respond with the case wasn't dismissed if we had been dismissed we was able to get our attorney fees under the colorado stanch and for a dismissal under rule twelve the so in a war defense or thirty feet and i understand your point but but but i think you're not responding to what i think ok alan is arguing here which is that i wasn't a full blown opportunity to to deal with all of these questions apart circuited and i just like to hear what you have to worry about that ok what are the grounds for showing good cause to reopen the case is that the claims are right right or right  properly applied by the district court in considering whether there was good cause to reopen first it determining where the claims are right if the claims are i don't want to say stale but non viable the claims are dead on arrival they're not right the second was because the plane does expressly invoke the futility was a spy saying we're moving to amend their complaint because as you recall the dismiss you know if you want to jump through unnecessary hoops i think that might be the case but i would like i said we would have loved to move to dismiss the case we can get our attorney fees because it's clear that this it or anything else and i can breach that that covenant on it we're receptive of what's rules about whether it is or isn't a trade secret well what do you know what they're trying to recover not just the breach of the confidentiality provision but the use that was what was going to cave they got their recovery because they didn't get all their damages they wanted they can come back and bring the sec not make him come back and see damages for breaches precluded by the doctor of clean preclusion is just an attempt to recover damages they didn't recover in the first well i notice i've been looking at the proposed amended complain and the breach of contract claim is it says breach of contract as to defendant second so it only applies to to mr effect and individually in the first case yes and so that was true in both cases yes all right and there was a confidentiality provision in the contract and there was a non use provision in the contract and my understanding is that they're relying on the nonuse provision at this point because the confidentiality breach was recognized in the first case and once you breach confidentiality you breach that but i take it what you're saying then is that if it mr ficken uses the design after the first case is over that they can't bring another taste against him because the first case should up so in the first case what they what they could have done if i'm understanding your argument correctly this is a judge has now found a breach and how we're going to talk about damages we want you to give  them to seek those damages in the first action and this is presumed that the damages that were awarded first action are for all breaches of the contract past present and the anything that might happen down the road they they need can calculate damages based on the speech you could even ask for an injunction for to prevent further breaches but if after the end of that case despite the injunction they go out in breach again what you bring another case and sue them have to be of a different position of a different part of the contract if they sue for breach of the use of either to breach the contract not to use design right so i used the design before the first complaint and then after he sued me i stopped using the design and i was i followed even maybe an injunction and then later well i'm still subject to the same talk show obligation i use again that might be a second breach but if the use is continuous no secession it's only one breach thank you for the court for your vision and we crested the trial because your court's order view firms think thank you counsel i think