me please the court bruce campbell representing pacific seafood with the court's permission i'd like to reserve five minutes for rebuttal as a court noted nearly a year ago the court vacated in remanded the district court's order that in its order the district court stated that this court had ignored the law misconstrued the evidence in this characterized the district court's analysis district court failed to give effect to this court's opinion and essentially adhered to many of the rulings this court had reversed on appeal there are four in particular one is that the pacific seafood had no the gym an interesting title to protection two that there's no evidence of the parties compete with branded products three that the agreement was not enforceable during due to drafting problems and for that there was no irreparable harm because pacific seafood is not shown any actual harm each of those four instances the district court adhere to it you and you and now and back and the well we know why you wanted to put them in area injunction initially you didn't get it and the year has passed and whatever took place has taken place so how do we undo that we can do it in years past so now you're saying give us another year because that was the initial request on what's theory we know that it can't be for the same reason you requested initially because that year has already pass so there has to be some other reason that you want it and answer wondering if the reason is do you want us to punish by now giving another year do you want us you you want the reason you is somebody needs to sue for damages if they are damaged or not but i don't think anybody needs to have this nothing injunction what would be the purpose your honor the purpose in it's the precise reason for the equitable extension doctrine in the purpose is to force several fold it's one to give the party the benefit of its bargain or as close as it can get to the benefits board but this is not the first case in which that's happened then there have been a number of cases where this case before me where it happened then that's why i'm asking you to tell me what we can do and why we can do it we can do it i think another principle reason is to protect the integrity of the courts and and we've dropped from brooklyn if i may buy apologies for not being there but i thought it was the providence the for me to do to save taxpayer dollars by doing this from brooklyn so i hope you could hear me and you know i would have loved to do it with your person but i decided it would be best not to do that but let me follow up and judge ferris's question what exactly do you want to accomplish here let me expand on that and wanted to respects if i can you mentioned you feel obliged to protect the integrity of the judicial process i think that's one of the things you said realistically in terms of your client what do you really expect to accomplish it seems to me that for the one year interregnum that this is all about you folks are spending hundreds and hundreds of thousands of dollars litigating this saying and has been this really taken on some sort of unusual proportions into the listed world so maybe you can sort of speak to be realistically about all of in august twenty fourth mean mr colson was not only competing with the civic seafood but was actively since soliciting one of pacific sea foods major clients you have seen contrary to the representations that they made to the district  punishment that is monetary damages the integrity of the court and needs realistically speaking can we sort of have peace now with this particular judge if you get the parties to shake hands and go on with their lives and your hon or i think there was a time along at the very beginning where there was an attempt to shake hands that that time has come and gone i think the you know we have tried we've gone through the ninth circuit mediation process to know to no effect you know to no end but what would want at this point is a one year injunction so the pacific seafood can get the at least part of the benefit of its bargain and that is mr causton agree not to compete with the civic seafood not to solicit pacific seafood and that's and that raises the separate discrete issue as to whether or not we have the power or the court has the power to engage in this act of belief by extending good for one year i'm not so sure that the law of all the congress so clear on that issue what do you have to say about that your honor i have to say to oregon oregon courts is not spoken directly to that but the garrett callahan case certainly opens that possibility in the the actual went case which is a district of oregon  for civic seafoods be here resumed the issues it raises on the appeal because for one thing you've got a complaint for damages for interference with contract and trade secret and if if the willing below junction stance understood or i think probably the claims for damages you've made are off the table because of the law of the case in the district court which said the provision was not in force so i think we have to be reviewing that as part of the injunction appeal our job is to predict what the organs state supreme court would do what's your best case for cases from either oregon supreme court or some intermediate appeals court in oregon that would support the view that it would extend injuncted the non compete peer your honor i think actually one of the better cases is the garrett callahan case which decided by ocean beauty where the court actually denied denied injunctive relief and said because there had been no evidence that there had been a breach of the agreement throughout the pendency of the one compete here solicitation agreements i think that there's a there's a separate issue to me the court has an inherent power to to issue ethical orders and i think this is a case that really calls out for that it judgment action pacific seafood move as quickly as it could to seek a preliminary injunction to prohibit to enforce the non compete so we discoursed judge set a hearing in october so we had to wait a couple months for that hearing that had the truth come out at that hearing that mr colson was soliciting q s t one of pacific seafoods biggest customers was also directly competing against the six you see food by selling through its grocery store customers not competing in some other sector like they told the court it would have been appropriate to get it to have injunctive relief and so pacific seafood essentially without injunctive relief civic seafood loses the benefit of the court in october twenty four teen we didn't know at that point because the truth actually had been shrouded at that point we had we had filed our bria i think the briefing was completed in early september so everything was very new  moved very we hadn't had much time before and we were still operating under the understanding that mr colson was not actively soliciting and competing against specific seafood enemy a third of the court you know i can only speak isn't going to undo it so if the situation then is for you to bring an action for your damages now i'm not telling you how to practice law but i'm wondering if that's the only rim of the available to you now if we do if we grant in the junction  we would do with say alright you did it for the first year we told you not to so now we're going to give you another year all right so we give another year and he says i'm not going to do it and he doesn't have the so then you come back at the end of the second you say they did it two years give us another year and we could keep this up till the end of time if you've been damaged now's the time to bring action for damages isn't it you tell me when i'm wrong well you think yes we do have an action for damages and i think damages are one of the problems with the pieces images are difficult to prove but there are nominal damages to even if damages are incapable of proof you know that would trigger a violation of the non compet not solicitation i think that's that's that's a given at this point but that mr colson agreed that he would not compete and not solicit and there are courts around the country have granted injunctive relief in these situations even when even a year ago this court said even though we're at the tail end which is best case on that the best case i think actually it is one of the best cases which cited presto x from iowa there's a case called roanoke  from virginia that talks exactly yes with precisely the situation that you know where the clock runs out you can't you should not benefit the party that delays and punish the party you know big because the the other party has delayed but even those cases don't they pale in comparison to what's happened here michel he said you want to save five minutes for a bottle you're down to under a minute now we can have a couple of minutes and judge block used up a good portion of your client wrong legit three minutes extra for a bubble thank you judge go there at this point i will see the floor to opposing counsel  matter i would like it is our position that the court carefully followed the mandate the court was asked to reconsider the evidence reconsider the motion look at the supplemental evidence and it did just that a little curveball was thrown in because the renewed motion was actually a different motion and we provided evidence with regard to that motion the court thoughtfully right now we have a beautiful view of the brooklyn bridge which unfortunately you cannot see but it seems that a lot of it was when did it by the district court talking about whether or not broad and that it was inappropriate to narrowly tailored it d'you think that's a correct position as a matter of law and the follow up question is what if we would to disagree with you what would be the outcome then if we were to determine that judge mightiness was wrong and that legally it could be narrowly tailored ok can't first question can it be narrowly tailored no not at this procedural posture because we're in the preliminary injunction phase perhaps under the right circumstances the case could leave the liner narrowly tailored once all the facts are before the court and that's  reasonable geographic scope or standard why you say that's not possible at the state seems to me that our prior decision specifically told the district court that the way we read oregon law provision could be in there and i thought that this is record disregarded our mandate and didn't drive it in forces vision with the with a reasonable scope well to two points in response to that first the oregon cases that do discuss blue lining also the the procedural posture of those cases was not in the preliminary injunction posture the problem with blue lining in a preliminary injunction posture is the parties have nothing that the the  employee is held hostage by what the employer wishes to do and those those citing that cited in our brief as the concept of the interim clause and that's what happened in this case it was an exceedingly broad non competing to start work with the where we do business which conceivably is the whole world in reality and then when it suits its purpose pacific says oh ok not here or not here equitable extensions issue we are now two years nearly two years into this and the time has run the second thing is there's a significant it's a significant question of fact as to where m resolved for this court because they have to be resolved for there to be a claim on damages like raised by judge parents because the district court decision said the cla not enforceable well so there'd be no damage well i don't think i'm sorry so if the district court was wrong to not limit the geographic school and enforce a reasonable and duration of a non compete if that was wrong then when we have to say that in this case even though it's an injunction one of the elements of the injunction is likelihood of success correct and i in scouring the opinions of the district court i don't think the district court has made an affirmative ruling that the non competing is in district court stayed the case pending resolution the resolution here so that issue is currently pending but the court hasn't as as a matter of law has not decided that but we come back to the  reparable harm issue and if pacific seafood can show irreparable harm then there's no point to the well there's two no points to the injunction one of course is the equitable extension issue the times run two they can't show irreparable harm and i would like to take this moment if i may and clarify the record on the q f c issue the civic seafood has made quite a statement about their view of the case and including attacks on my client in attacks on me and i don't appreciate it and they're not true and i just call the court's attention to a couple of things because i think it's important in understanding what's going on here and if we go back to as early as early september two thousand and fourteen pacific seafood was told in two places that mr costin had a new job and that was in the answer specifically called out in the answer and it was in the job descriptions that were provided with discovery and in fact those  job descriptions with the general manager seattle description were attached to the declaration of jim philips which was attached to the motion to supplement the record and that at  one e r one forty eight at the initial hearing there was discussion by pacific seafood about what its concerns were and one of its concerns specifically stated was that mr colston was soliciting customers actually let's see and that's that s t r one eighty three basic seafood has known that fact from day one and to claim now that they didn't and somehow that should form the basis for the equitable extension argument or that somehow ocean beauty and i have misled the court deliberately is simply not true counsel you know let me should let the justice i'm sorry go ahead  l big problem your in my mind is the percussions the district court apparently concluded the covenants not enforceable because he wasn't going to narrow it as we as we suggested it should be narrow that he didn't really address and make fact findings on all the issues that might be  injunctive relief or on all the issues that could be pertinent to other equitable relief or that could be pertinent on to the damage claims which are in the complaint so i have a little trouble here with seeing how we can address this without without more complete factual record and so i'd like you and mr campbell which should be remanded to a different district court judge in response to that two points i think first because the case is still pending and of course there's a there is quite a bit of irony and that is if we hadn't if the case had proceeded from the beginning we'd probably be done with it by now but in the case is still pending there is still a damages claim and all of those findings of fact can be resolved can and should be resolved in the damages claim because those are relevant to those by that i mean the scope is is the scope of his employment is relevant to damage is but is there a damages claim if the covenants not enforceable well there there is still a damages claim because there are two factors in that agreement one there is a covenant a general covenant not to teach anywhere we do business and two there are non solicitation claims pacific has now taken the position that mr colston is soliciting its customers and therefore they do still have a damages claim and the issue there is an issue there about she left c and who is customer is q upsy and i think the record is very clear that you have seen has been a customer of both of these companies for many many years for address the question i posed to you whether if we if we disagree with the does records approach the covenant and conclude we should remain and because the facts aren't adequate developed whether it should go to a different judge thank you for reminding me about that i think no it doesn't need to be assigned to a different judge judge martinez has showed repeatedly in this case that he's not favoring one party over the other that he is reading the pleadings he is looking at the evidence he is being very thoughtful in a couple of examples of that he denied ocean beauty's motion for attorney  he denied our request for an evidentiary hearing he granted pacific seafoods request for an expedited briefing schedule there's probably a few more so i think what pacific seafood has lost twice in front of judge martina's is the motion for a criminal area injunction but judge martinez has presented a thoughtful fair and balanced view of the case he is familiar with the case and i don't think there's a need to ask another judge to review it let me let me have a now totally shift gears here you now will have gone a long way in battling with each other in church martinis and you know what though i characterize this as bad blood but this something as a practical matter which which concerns me here all the way from brooklyn in terms of the reality business judgments of them made or not made it seems if the parties are just warring with each other in perpetuity you've been through a mediation watch that was not productive now you've gone back now and then you're coming back here this is a visit of mesh here you now have the benefit of ferr is concerned some of those concerns i share as well that what do we need to accomplish by protracting this thing on and on and on you have the benefit of judge schools insightful comments and some of those i share as well  maybe it just might be useful now if you're engaged in mediation again do you think there's any wisdom in doing that now that you have the benefit of everything that's happened since you left in gaijin mediation and you have a sense that this venture is somewhat troubled a number of ways pro and con about your positions your honor in my opinion mediation is always worthwhile discussions and resolutions are always worthwhile  i hear your concerns and understand them and appreciate that this is a frustrating long term rather and as you've noted what are we doing here two years later still arguing about the same things my in my opinion as a practical matter what is specific seafoods get out of this well they get publicity out of this and that sen very loud message to its employees and its competitors that it will fight to the end regarding these non compete agreements and you know going and i'm going to weave into that right now the whole equitable extension issue i take it you say that you are open to mediation and they are shipping seafood maybe the problem i'm going to ask him whether he's open to mediation now in a good faith effort to try to get people to be sensible there's a lot of business that's another drafting problem with this agreement is pacific seafood did not put a tolling provision in its non computer agreement had they put a tolling provision in their non compete agreement we wouldn't be having this discussion but they didn't do it and that's yet another example of pacific seafood the deficiencies with the agreement and pacific safe is now looking to the court to i understand that and i think that the point i would make with this is this isn't the posture of preliminary injunction motion so the typical law of the case doesn't apply because preliminary injunction motions and hearings are just that preliminary and it is not uncommon for additional evidence to come in during the period of an injunction that the district court may or may not consider which must carry forth and that changing circumstances should not be considered doing because of the hearings or the proceeding is that what you're saying that we should judge this case on the sale like it or not on the current record no that's not what i'm saying that there are instances where facts and circumstances change and new facts arise which should be considered by the by the district court  motion for preliminary injunction thank you for your attention and thank you for your hard work on this case yes thank you your honor with respect to the representations to the court counsel said that civic seafood knew full well where mr colson what he was doing where he was working  i don't agree with that statement but even if let's assume that's true it doesn't relieve counsel of their obligation to tell the truth to the court and i'll stand by the everything that we said in our brief with respect to the representations that counsel made counsel  this is a page twenty five of our opening brief oceanview the office said over and over again and mr colson has not attempted to solicit and will not be soliciting any pacific seafood customers he repeated that statement to this court in fact this court had to point out at the last line of its opinion last year that just because you're not soliciting doesn't mean you're you're not violating a non competing greenman because they are this court heard that same story and remit and judge martinez one of the reasons he found that there was no irreparable harm is he said one there's no actual harm which this court of which is contrary to this court's legal ruling but also he said there's no there's no evidence of solicitation and in counsel said mr district judge was fair and balanced i would i would say ask the court look at the language itself look at the characterization of counsel's arguments and the last time i've heard fair and balanced as a description of fox news and that's not right i think we can we get that argument when he says you're also over your time even the extra three minutes we gave you i think we're going to have to bring this to a close what i want to ask one further question both counsel about the possibility of mediation that judge block as raise there two different ways if we want people to explore mediation that that i'm familiar with that we can do it one is after argument before writing any opinion we can issue an order telling the parties to consult with the mediators and if they know when to early one to mediate or it doesn't go anywhere that's the end of that then we decide or we in some cases will work up our decision make our decision file the decision but file an order saying that we're going to stay the mandate for a specified time after our decision so the parties can pursue mediation if they wanted to do that and i'd like to know if either of you have a position and if we're going to urge mediation which of those approaches is more likely to have any possible impact i think that the latter option would be preferable because it would give greater clarity to where what the court is thinking and that what if this case is going to be resolved amicably it's only going to be because the the court is spelled out where it's going to go i think anything short of that is going to result in a failed mediation  ok well i appreciate councils patience with all of our questions is not an easy case let me say little is not an easy case that we are not afraid of ruling we do it all well i'd like to just comment and i want to thank both counsel in the case very well argued on both sides i do share some concern i think judge block was indicating about the amount of client resources going into this dispute about what is normally a fairly routine matter reasonable scope geographically and duration of a non compete clause but i assume that ocean beauty and pacific people would have good business reasons in their own minds  why they want to make this a pitched battle so we will therefore issue a ruling if we want supplemental preached on any point or fully what the parties to go into anything on mediation we will send you an order that in that case is now submit thank you thank you