this case stems from a sudden movement voluntarily entered into by asarco with the united states of america whereby asarco paid four hundred and eighty two million dollars to settle the government's claims to repair and to restore the court elaine valley as part of the settlement which is the largest in the united states history of its type which settlement took place in the bankruptcy court the united states granted to a and statute provides to asarco the right to see contribution from non settling parties for the harm that they too caused to the environment which prevent safe and healthy whole communities from cleaning up entirely all of the pollution cost over one hundred years in quarterly valley now in order to implement this right of contribution asarco filed a complaint and the district court at the urging and with much misleading by union pacific railroad the district court erred and it should be reversed in this decision under rule twill twelve to dismiss a circus circus contribution claim under section one thirteen f three b because be much more specific in our complaint but as far as the conduct alleged in the original complaint and the way in which the union pacific polluted the environment that didn't change was just as to what you know graphic inclusion and an area by the way that was not the subject of contribution protection granted to the pacific with respect to its other sites is a specific work that it had performed and then you filed in a minit complaint was just a month later i was correct  you included the north fork area and what happened that made you realize when you include the north fork area over that month during that period of time investigation was ongoing and this is a case that is pending before this court along with many other cases that have been filed by asarco against the pacific and i will tell you as the trial lawyer preparing the case that the union pacific has been very aggressive eleven sanctions motions that we wanted to get it right and we did get it right the union put the complaint the first of many complaints which judge large threw out at their urging and through their misleading statements with respect to contents of the settlement agreement that i'd like to get to in a moment when we filed that complaint we we believed and we continue to believe that the areas that are the subject of that complaint for which contribution is being sought are not covered whether the amended complaint asserts a claim that arose out of the conduct and in this case the releases caused by union pacific through their construction of the relevance throughout the court laying valley they contain mining waste that are reaching happened in the thirty days that changed your mind and i mean your honor waited till the last thing that is correct and so this what happens yes when you wait to the very very last day the statute does impose a three year restriction of time and you are correct we did wait and we once we once we filed on the deadline we needed to make sure that we we if we had any additional information that we could make the complaint more precise and that's what we did but to say that union pacific is somehow surprised by including the north fork really but what you haven't answered my question is why was it excluded previous because we weren't sure we weren't sure of what we were sure that the union pacific did not have contribution protection for that area and if you weren't sure was because you hear that they are the new go they are the party that negotiated the consent decrees they are the party that would have some understanding as to the matters covered under the consent decrees and they have access to information that they make very to make it very difficult to obtain to determine the nature and extent the scope of those  lawyer who has spent four years now that a gating against union pacific throughout the united states concerning the one point eight billion dollar settlement that asarco intern into with among other united states and against the union pacific for honour's and inflows in those conflicts including the cynics case that we brought to the court's attention where we took that to judgment the court recognized and the seventy two page opinion that asarco has this right under so under her circle section one deciding contractural release yes your honor why didn't you put the explicit reservation that we're reserving our rights for contribution in the future you know how to do that because we were all part of a of a global settlement together that it would be unrealistic and i think that was his word and in his opinion to conclude that somehow the asarco in the union pacific parties to th was no global agreement that included union pacific union pacifics claim was for freight damages and its own past costs at specific sites it was a four million dollars settlement not a four hundred eighty two million dollar and although the attempt to characterize this as a matter that was litigated it was not it was settled and the settlement settlement agreement omitted reference when they advocate the settlement agreement before this court and ennoble review and when they advocated before judge lodge they omitted reference to a key defined term and that key defined term here on or i'd like to read to you if the defined term which is the subject of the release is under remain does it releases all claims arising out of or in any way connected with cost of responses incurred by union pacific so my question aren't my question aren't they in some way connected to what you piece cause they are in all respects connected to the remaining site costs as stated in the defined term under the agreement and remaining site costs are defined as claims for all past costs or response under sir incurred by union pacific at the remaining sites this is not a general release as to circle this is not what what w agreed to it was a it was a bankruptcy claim filed by the railroad seeking freight damages and some past costs specific sites which were defined and that definition is claims for all past costs a response incurred by union pacific at the remaining sites as you know we can't consider subjective state of mind was there any correspondence email exchange discussions between the parties about what this release was covering and what it wasn't and particularly was it getting rid of her releasing extinguishing asarco as future contribution claims because this is being considered under a motion to dismiss before this honorable court if we have the opportunity to do that if we have or are provided the opportunity to produce the evidence of the intent of the parties i can tell you that there will be a mountain of evidence showing what the intent of the parties w with respect to this contract to the perspective with respect to the settlement and that was a to preserve a circle's claim and b to settle the union pacific claims for response under certain incurred by union pacific i would remind the court that in the bankruptcy in the bankruptcy agreements in the end in all of the matters before the court that pertained to the approval of the plan of reorganization a circle reserved its right to and court this case should not have been dismissed on a motion to dismiss this was not a part of a global settlement where the court determined that we didn't even have a section one thirteen f three b right and for that reason we strongly urge t complaint or to allow for a fair and fruitful interpretation using the defined term response costs thank you union pacific and if if i'm right what was the purpose and intent of the clear purpose and intent of incurred by union pacific your honor you are correct and  the the agreement on the last is unambiguous the court can and did take into account the context of the entering of the agreement which was a bankruptcy claim where union pacific asserted a bankruptcy proof a claim and it was a contribution claim and as the court is well aware from having the prior questions you asked and the other case that in a contribution cont one party brings a contribution action but the result of resent resolution of a contribution claim is an equitable allocation of the claim between the parties that's precisely what happened here in the context of the sun when agreement of mutual releases the mutual releases as the court has pointed out was very broad form it encompassed any and all damages losses expenses costs claims law equity known or unknown arising out of or in any way connected with the remaining sites cordyline being one of the remaining sites clearly within the scope of these contribution claims asserted now are connected with the u p a cost because of that need to and what the contribution action calls for that equitable allocation between the parties there are for reasons that are for arguments that asarco makes to manufacture ambiguity or create factual issues here that the court should be jacked and i'd like to briefly address each of those before you get to that though i'm going through your grantor judge cries question about what was the purpose of including that phrase incurred by union pacific or what does that mean union pacific was union pacific brought its contribution claim based on the cost that it had incurred under three consent for significantly over approaching one hundred million dollars and those costs as part of a contribution action union pacific claimed that it had rights and yet submitted its proof of claim asserting those rights under one thirteen for contribution from asarco and the it was those contribution claims that were resolved by virtue of order for asarco to emerge from bankruptcy it had to resolve each of the proof of claims not just those with united states but those with private parties and so it was resolving bat pro asarco asserts that the release doesn't meet the texas standard because the claim was not mentioned but the texas standard was distinguished by a later case actually cited require that the parties anticipate or identify each potential cause of action or it and that the release man compass unknown claims so that is consistent with the broad form scope of our release addressing known or unknown claims arising or in any way connected with so the choice of law issue we would meet the more difficult texas standards the scope of the release is unambiguous as judge flushed down the plane he ruled that the plane reading of the mutual release language reads to only one conclusion that paragraph four and five mutual release provisions are exactly what they say they are their mutual release says that the claims subject subject to the parties agreed upon mutual releases include any and all claims whether known or unknown and if he determined that it was unambiguous asarco also asserts that it could not waive the claim the contribution action did exist and what asarco does here is come flate the creation of the contribution claim under one thirteen at one with the limitation provisions and the triggers under one thirteen g that is non appropriate analysis so but in any event the court doesn't need to decide whether that claim existed at the time the settlement agreement was entered into because the release is broad enough to address known and unknown claims anything that was arising out of or connected preserve the claims it simply did not do that because specifically working through each of those claims the cord lane claim or the court elaine settlement with united states the reservation there is only a reservation of claims that the parties may have against third parties in the confirmed plan the reservation is  reservation of claims which p r p claims have not been discharged or settled similarly under the schedule of preserved claims the exact same reservation language was used only preserving those claims that p r the that i have not been discharged or settled and obviously here the claims were settled already we talk about the relation back i'd like to get your views before you run out of time ok if your honor if i may just add one final document the disclosure statement which was in a  supplemental expert report or ex excerpts of record i think that's key to the preservation issue on page nine of the supplemental x x or the reservation settlement containing that release is reversed on appeal by final order so there was no appeal of this settlement and the settlement and release was not appealed that  disclosure states that asarco was not authorized to pursue this claim because it was already it was already resolved and middle east turning to your honor's question about in relation back  we don't believe that relation back was appropriate and and that by virtue of the second amended come over the first amount of complaint being filed in july that it was time all my assumptions correct they are not your honor they're not ok because in the parties first of all as you pointed out the original complaint expressly in paragraph twenty one excluded the north fork so union pacific was not to notice and these claims ostensibly arrive from the payments that asarco made in the bankruptcy and in the bankruptcy context were the way in settlement was under a separate agreement than the one site associated with the north fork court lane was settled in the residual sites settlement the jack waite mine was settled in the miscellaneous sites settlements they were approved by the bankruptcy court on the same day but they were entirely separate contracts moreover different whether or not there were other p r p is involved would be different in the north fork and under the relation back doctrine if there are different facts that would have to be brought to bear then the claim should not relate back and that's precisely the case here that it seems like the facts are very similar to their original facts so forth are sarkozy play are they not but the facts that it's a contribution claim that it occurred in the silver valley yes in broad form yes but that this separate site was a card out in the bankruptcy differently makes it i think necessarily a different contract and subject and not subject relation back to to respond to one of the court's earlier questions of asarco the reason that what is apparent that happened between the filing of the original complaint and the filing of the first amended is that union pacific filed a motion to dismiss documenting publicly available consent decrees showing that union pacific had contribution protection for essentially the entirety of the main stem the south fork and nat natural resource damages for the entire court land basin so as soon as those documents were filed then the consent decrees were publicly available they were not adding only the north fork and the north fork issues are different so i think i think that that then the north fork revision and the first amended complaint does not relate back like you just some of us are judge had a very good handle of the area did would you concede that yes he did your honor he certainly understood the geography of the site and he heard seventy eight days of trial regarding the case but i i think that the exclusion of the north fork in the original complaint as compared with the fact that it was separately settled in the bankruptcy with different dollars being dedicated to it and the facts would what has this fairly be different suggests that relation back was was is not  i think is fundamental to the reason that judge lodge parker we found that dismissal was appropriate because the claim is simply not plausible thank you thank you i don't know if you'll take my word for this but i'll probably use less i just want to point out to the court that there has been a statement made to this court that is completely false and that should not be relied upon the court deciding whether or not to reverse there was no equitable allocation of union pacific claim against a sort of code in the bankruptcy there was no equitable allocation of the united states claim against defined term that is not relied upon through advocacy and that that this court is urged to ignore would lead to reversible error and that's exactly what happened here thank you thank you thank