coverage dispute between the insurance companies and pfizer the problem here is that the district court did not make correct findings of fact or use the correct law in deciding to abstain from hearing this case i plan to go over what the mistaken were what the mistake in mark was and why what the district court did in the and did not actually achieve any efficiency the district court in this case made three orders the st was to stay the more action which is the action we're here talking about in staying the morning more be to action even from that very beginning the district court confuse it with the jones action which has absolutely nothing to do with them or beat up action they related well the more of the jones the jones parties related it and asked for it to be heard in front of the same judges are already pending we had nothing to do with that and we have no idea why we didn't object at the time i don't think we could have possibly st seen that it would affect us in this way it was an interesting look at the end of the day even vova district court regionally treated viz two  cases as being one did all sorts of things which were peculiar because of what happened but in v n the district court was faced with the fact that in one case this case which is before a state court in delaware state court proceedings are going on and your client has been asking for judgment in federal court here and that in cases of that sort of a supreme court you'd brill hearted wilt has been very clear that the general rule court said in the interest of justice that is how i come out and so everything else every mistake every confusion everything that is going on is all  today we don't have colorado we have the straight brill hart built up in which with a district court used its discretion to say sorry the case is in state court in delaware was that the end of the whole thing and very simply well your honor i understand your point but the problem is that the district court applied mistaken facts and mistaken law and never applied the correct abstention t here and we were deprived not only what it but it's not that hard it's there is an ongoing state proceeding if you want to declare it tory judgement she says there's an ongoing state proceeding even if there are mistakes and it happens the district analyze the correct facts and the corrected abstention doctrine in the court didn't all along every time the court talked about another case and i'm going to send it back and so somebody else can say you know under the right words i think that doesn't seem to make a hottest and well i think you have two options one is to send it back and directs the district court to analyze this under the appropriate facts in the appropriate law or the other is having now analyzed all of the abstention factors yourself to the case in delaware is proceeding it's decided you can go just go just we're deciding what the choice of lawyers is going along why on earth should we told somebody coming in and the federal courts to interfere because that your honor i don't think this would be interfering with any important issues of delaware state law and i think this is a very unique case because there aren't other cases where there's contemporary contemporaneously this is a fairly standard kind of thing you get somebody claiming in state court when an insurance company should pay i don't know if you should pay or clearly is that in cases like this you don't go into a colorado you don't go into her mission you let the state court i i don't think that's fair and i think what the federal courts in new york have done in recent cases is to say that you must and i the abstention factors and if you haven't analyzed the abstention factors it is not fair to just obscene and that a federal court is in a very good position to decide choice of law and  law issues all the time and here there's going to i just don't like it either there's no important issue of delaware law to be decided this is a street contract dispute and new york wash it apply and under new york choice of law rules that's clear as day there's hardly any connection to delaware this case should never have been in delaware and the point is you saying that there are sufficient complications and not enough on the record for us to  to disagree with you with the district court got mixed up at any number of stages of this and it was particularly its fault because there were several different cases and confusion and so on but my question is once it go over almost mix ups at the end when it is said in the interest of justice this is what should be it wasn't actually do we substantive do right but the court was confused about how justice would be obtained the district court believes that these two actions are going to be sent to delaware and be litigated together and that it would save some judicial  resources and they're being litigated in completely separate courts and will have nothing to do with one another so us being stripped of the opportunity to have our form not inconvenience motion decided and to be in new york court where we should be is just completely unjust because the judge only decided the jones case and never took a look at our case based on the facts or the good afternoon your honour's may please the court my name is mark counsel for defendant appellee pfizer in this form appeal i just want to touch on one of the last things that my opposing counsel just said and that was that the district court here are unfairly standard and then the insurers withdrew their motion to dismiss on for not convenience and in its place filed a motion on the merits to have the delaware state court judge decide the merits of this coverage dispute under state law when nearly identical jones action under the st filed when the insurers here before you wrote to the district court and said that i believe you made our dismissal on air our motion to dismiss in state court is still pending the we don't have to duplicate actions pending in competing courts state and federal instead this coverage of you is going forward on the merits in dollar steak or where the natural plaintiff pfizer has every right to file its lawsuit seeking coverage for its directors and officers under delaware law now to the closing counsel's argument that the district court was required and must analyze certain factors explicitly that's never been the standard in the nd circuit and in fact the nd circuit has said that it does not hold district courts to the standard of draconian explanation of every single factor and that ties into the standard that's at issue here which is abuse of discretion the district court only abuses discretion where there is no reasonable basis for its decision here the district core across three orders said all the role of an factors that would be that would pertain to a dismissal under its broad discretion of the choir to a judgment action it said these are duplicate actions it's the parties are seeking the same relief it's said that all of the convenience factors that could point to new york they were pfizer's neither of the insurance companies or new york and it said there were no special circumstances that would warrant this federal proceeding to take precedent in front of a state proceeding this be any different if the delaware court found that the appropriate law was new york no your honor have two cases pending for the delaware state court where they are applying new york law and they're doing an excellent job at it no that would not be an issue it would still proceed as it should indulge where state court and or i don't i don't believe so not sure on that i know i don't know i mean you know different states have different things delaware will accept anything certification from anywhere from a dog walking supreme court did certify issues of new york law to the new york court of appeals that happened can happen yes that happened in one of my matters viking palm and but i think i would actually piggyback on my opposing counsel's response to panel which is these are straightforward issues of contract interpretation so i don't envision the need for that in terms of the issues bar your view is that the district court actually appl point which would be that based on your own finding of the record in this case that every single factor that would fall under usually reluctant to do that i mean one of the one of our jobs  to figure out issues of the relationship between different federal courts and the different levels and so on and you know these are discretionary matters we're not usually in the business of exercising discretion which i don't like to do i don't want to ask the panel to do that what i would say is that the nd circuit has held that is if there is evidence in the record that would support  two thousand and nine nd circuit case where the district court actually incorrectly relied on a younger abstention doctrine and what the nd circuit did is that while it felt that the facts did not fall under the younger abstention doctrine it nevertheless said we agree that abstention is appropriate but rely on a different precedent and rely on the beer for abstention doctrine so if the court were to find a judge for us at the district court still mistakenly even being presented with the facts that their action was pending in state court still relied on the st filed doctrine the nd circuit has the ability to look at the evidence in the record and rely on a different action pending the important decision on the form nine convenience issue that was pending in delaware we were deprived of the outcome of the because the district court didn't await that decision as the court had said they would the district court also really had no basis to find judicial efficiency so i don't think this court should find based on a different abstention doctrine that the district court correctly abstained the two cases were and remain completely separate there are different underlying litigations for which pfizer is seeking different policy limits from different insurers and they have nothing to do with each other so i don't see how we come to an outcome where it's judicially efficient to have it in delaware versus new york in either case there's two cases pending and there's no efficiency by sending this one to delaware i also want to make the point that this is not an issue of important or complex state law that delaware should have preference in deciding this is an issue that should be decided under new york law and the federal court should not be giving delaware any preference these two actions were contemporary contemporaneously filed there's no issue of st filed or vexatious spiraling here we were permitted to and filed in the correct forum and we should be entitled to a decision on that i also want to point out that the district court got the facts completely wrong if i could just address that briefly there is one issue that will be decided by the delaware court there is barely any progress that has been me if we lose that one issue there are three issues to litigate from inception there has been no progress on those issues and there's no reason why the new york court can't hear those issues from inception thank you very much thank you says in the final matter of the bar which is on submission and as