address three arguments your honour's first that the district court erred in dismissing the amended complaint with prejudice and without leave to him and second that the amended complaint sufficiently pleads facts and  rule nine b and third that the district court's failure to accept well plead the allegations as true and making reasonable inferences in favor of the appellant as the nonmoving party was error and justifies remained with respect to no leave to amend the one three case law is very clear that leave should be granted even when it is not requested by a party unless the court makes specific findings and those you might want to skip this part because we know that  pleading the fact what the court did was in the conclusion indicate that for the reasons stated above and because j j kelly did not ask for leave to amend that it was dismissing that complaint with prejudice that is clear  without any findings it's difficult and it is there is some confusion in the appellate brief in your honour's as to the appropriate standard for review of this issue j h kelly has indicated that it's a having money in place to play for the construction costs that had been incurred and that would be incurred in the future what your very strongest citation to the record because you know what their argument is their argument is that these are statements of promises statement statements that didn't really cut it under rule nine so what is your very strong thinking you could be the citation to the best your honor it's in the excerpt of record pages thirty nine through forty two and forty four ok and are you relying on kelly those statements indicate that the appropriate financing will be in place until completion of the project that statement cannot be reasonably inferred to be an opinion a promise of putting money there in the future and what goes to it as well your honor our are references and citations to the district court to the ten q s for the whole coop companies those two excuse  hughes indicate that there wasn't sufficient financing in place at the time the ten q s were issued and they were for two different time periods one was for the end of the third quarter two thousand and eleven and one was for the end of the fourth quarter your co weren't true yes your honor it's in the fraud section of the amended complaint i believe it's paragraph fifty five i may be mistaken on the exact number but i believe it should be ex of record page forty four but those allegations are that the statements were false when made in that they knew that they were false because as executive officers of not only way for the most part but also the whole crew entities they were aware of the true financial circumstances and the truth of those financial circumstances were set out even further in the ten q s which are not the ten q s were not alleged in the amended complaint but they were referred to the court in response to the motion to dismiss comes up if we look at the november seventh teen e mails the first one sent by mr paul who i think only wore one hat most of these folks seem to hour another e mail went although not by mr paul right and that one said we owed j h k about twenty million and we don't have a clear payment plan right yes that's mr zangs e mail right and so that second e mail it could mean we don't have a clear payment plan could mean we don't plan to pay them or it could mean we're not sure how we're going to do that and i think you're correct your honor and the important fact to remember the important thing to remember is that at the pleading stage as a nonmoving party that whether it could mean this could mean that is a reasonable inference i think should be drawn in favor of the nonmoving party j j kelly what happened in this case was a district court to any sort of benefit of doubt and gave it in favor of the moving parties and dismissed the case with prejudice which was there it's not like he snuck up on you this is the third complaint right the second complaint your honor give me the amended complaint right so but it's the rule nine standard and we all know about the who what where where why how and to the extent this is capable of two different reads it seems that you have a problem and if we do have a problem going to get up and say that's not sufficiently specific that it doesn't it's not unequivocally a statement from correct and what happened below was the court in analyzing the allegations determined  the the statements the false statements as we have alleged were promises he'll promises a future payment which under idaho case law is insufficient to plead a claim for fraud which would also be insufficient for a rico claim based on wire fraud and the problem with that is the allegations the plain reading of the allegations in the complaint are not filled promises of future payment their failed promises of actually having the money in place at the time and the reason that's important is because kelly's contract with hope who at the outset was a cost plus incentive contract which was one that required to actually have the money up front page kelly would give a budget of what it planned for construction costs for the month going forward that money with me given to j j kelly and then they would go and do the work this was unconventional financing and that was why those allegations later on about having the money and place and being able to pay for not only work that had been done wasn't paid for but having money in the future to pay them for the continued work was so important did you want to reserve some time i do thank you morning your honour's may please the court my name is james smith i'm representing defendants mike jong and sean lou joining me as co counsel or mike rowe for defendant to run away and kelly cameron for individual defendant way sh i'd like to unless there are questions that the court would like to go directly to an issue i will address the sufficiency of the fraud pleading and i will reserve a little bit of time for mr roach to address the court as to any questions on the dismiss one there's a question about what it means we don't oh sorry we old j h k about twenty million and we don't have a clear payment plan it could mean we don't know how we're going to pay it it could mean we don't plan to pay it but what if that that e mail is juxtaposed against the november seventh e mail the earlier e mails this seemed to indicate that the only thing preventing jade's kelly from receiving its funds was a signature or banking policy that prevented the money from actually being transferred yes i appreciate the comparison there and i think the issue is all of that is goes to hoe koos concerns about receiving this money and needing to get it and it is completely consistent with what else was explained to j j kelly that money was delayed or there were timing issues in actually receiving the money from t n ways coffers in china and all the while killing he was working on the project right that's correct that's correct and the longer they worked on the project as it turned out the more loss they were absorbing i mean there's no mystery and what kelly's complaint against all of your respective clients is you were sort of shining them  along that's what we say down in the desert while they continued to work and encouraged spencer's right what they were the complaint is sufficient and we'll decide that as a matter of law you are not fooled in any way by what this complaint you say you do simply say it's not true i would agree with that as a general theory your honor that alleges it was tricked into continuing work however on term that's what they're saying that you promise promise promise we said we have the same expression alaska by the way right that they're just string them along so what's the answer to that right and being strong along with allegations that  that's that's fine as a beginning or as a theory however it's a question of what facts are alleged with particularity to support that theory so let's go to that with particularity in there a difference between the check is in the mail and i'm going to do everything possible to put the check in the mail and you guys are really taking the position as they sort of skirted the issue and they're really saying it's not fraud stated with particularity because we said we do everything possible will promise that will put it in the mail and they actually had to say the magic words the check is in the mail for it to be stated with particularity but didn't they just do that at paragraph thirty five complaint which is in the record at thirty nine where they state on multiple occasions during two thousand and eleven mr saying and mr pawle acknowledged the delinquent payments and stated to g h kelley that way then had in place all required financing requirements for completion of the project isn't that enough to state fraud with particular not in this context your honor and why not because the clear distinction drawn throughout the complaint various arguments is that they were looking to in a way to have this money not for hope to have this money and so when the folks at home who are relaying information that way has this that it's been committed on thousand ways and company is sending this money i have or has committed in j h kelly's argument i agree that in a vacuum but then a paragraph thirty seven of the complaint and that's also what the record at thirty nine is this hope who has enough budget to complete the current contracts so that's a specific reference with so you're right if it was just in a vacuum and they said chen way is going to commit these funds you're a that's a promise they're not contract we obligated to g h kelly well hoke you is and at the same time they're making that goes back to the distinction of whether hoke who has money that it can track on its books for purposes of what's said as you see filing or whether it is still waiting to have received that being that there are procedural hurdles or signatures was that the only thing preventing the money from coming to the whole essentially was that that was it was it was out of their control it was a government regulation what about that i think that goes to the exact question of that there are circumstances at play and the argument by j kelly's really wrapped up in a fallacy that when money doesn't arrive to page h kelley when they never receive it then it could never have been committed and so with respect i don't think you're answering the question we're asking the same question both of us there's a place in this chronology where where as i read the record and i've been biting it to correct me if i'm wrong where the defendants really had represented that they had done all they could do they were no longer even waiting for mr signature that the money was actually not only funded but that it would be there as soon as chinese government regulation regarding the flow of currency words it was in key in the q what about that you know i think the focus is the main problem being that the defendants in this case aren't told with particular ready what exactly was wrong with those representations and when they didn't get the money that he understand what they were told is that the all the money was there it was funded they were no longer waiting for a signature to sign off but it was judge colby actually said to use a probably something that alaska shares with the way that the check was in the mail right and that's a commitment to do that to send the money right it's a commitment on the part of team in a way or that's what was represented it's actually a statement what they're arguing and i forgive me for interrupting they're arguing it's not a statement of future intent a commitment to pay it's a statement we've sent it we're just waiting for the the mail carrier to deliver it to you but right you know or you know it well it's in the bank basically all you have to do is draw on it and maybe then we should look at it from what the perspective of what j j kelley has alleged and they've alleged that what was false about the representation is the reason it was false in this whole context is that anway did not have committed financing for the project and when that is their theory that's really what they need to support with these particular facts were not told how much money james kelly had and when they had it were not told what j j kelley had committed to do or intended to do with some amount of money that it had and there isn't a way to line up some truth about on ways financial resources first none has been alleged but second it hasn't been alleged with respect to a particular time period and certainly not that we could reliably line up with allegations where they say that regularly throughout two thousand and eleven or at times in twenty eleven this is not a case as i understand it correct me if i'm so we don't need to amend we stand on the complaint but they wanted the opportunity to further remove correct i understand that they're asking for that now or saying they should have been granted that now but they didn't judge will we're standing on this complaint we don't need to amend correct that's correct and i will yield the rest of my time to co counsel if the court has no further questions wanted it had its original complaint had its amended complaint and now today i haven't heard any additional argument new facts new circumstances that would additional factors that could be alleged so theoretically they had three opportunities to fix their deficiencies and haven't been able to do so secondly and most importantly under the under the five factor test i think any further opportunity to amend would be futile as suggested into zuko pardners case where the plaintiff has had multiple opportunities and in this case with specific instructions from judge judge windmill and they failed to fix those purposely collapsed that and gone to the five factor test and conceded for the point for the purposes of argument that we will get there right so you're saying it it would be an act of futility to send it back on that issue because those five factors could be show specific instructions about what he found lacking in the pleading gave j j kelly twenty days to admit they did and then judge when mills decision he points to that very same deficiency so there is a linkage and i don't think it's fair for j j kelly to argue that there was no explanation in judge windmills decision i think i could because you're over your time but i agree that in  defense of the district court there are a lot of allegations here that don't rise to the level of satisfying all night but i look at the november seventeenth e mails including saying you know we don't have a plan we don't have a clear plan and yet on november seventh ten days earlier they were told the delay in payment was due only to lack of mr signature so there's a lot of static but when it boils down to this why isn't this a statement of fraudulent sufficient just hoops has to support the amend the complaint allegation of fraud right here  why aren't those enough yes there are i can't answer that question any better than mr smith did i would say that as the court as the u s supreme court suggested in a ball this analysis really is one that's context specifics where the district court is called upon to use his experience and it's common sense and what was happening in two thousand and eight two thousand and ten was a global economic meltdown this was a project that cost over seven hundred million dollars and it was at the five year mark or four and a half year mark when d's transactions occurred this conversation this back and forth this static your honor was occurring all over the of times a day this isn't a fraud or a rico case this is a breach of contract and a collection case and that's the difficulty that mr pirtle is having in trying to drive a square peg into a round hole this simply isn't a fraud case thank you thank why isn't he right this huge collection on fraud cares this was a case where j h kelly stayed on site and change the terms the payment terms for its contract based on representations that were falls that is fraud they certainly change their position based on reliance on those statements and to address mr rose concern about the fact that we haven't come forward with new facts i would s it that it is not part of the record from below if the core wishes i can go into allegations that we would make if we are granted leave to him and it's a little bit of speculation at this point but  say ordinarily in a case like this we have a motion for leave to him to further a man with an attached example of what the third amended complain against in this case would look like and we can look to that but we don't have that right and i think that's part of the air your honor that there was no opportunity to do that we simply got the decision from judge windmill and at the same time also got a judgment change being a term of art in the construction industry context in front of the district court was there any argument or discussion about that that term of art no there wasn't and again we did not have an opportunity to present any argument on the second motion to dismiss thank you thank you