typically the plaintiffs says residents are some such word and not citizenship and and it's not one where there's a motion to amanda on one basis and that of the p o we bring this up about diversity use the court to discuss say a circuit that you did i think at the risk of repeating you did not raise this particular grounds to the district court in motion to amend cracked we did not is brand new one appeal how are we supposed to approach that less standard are we applying now well again a circuit city flaw allows for a party asserting that subject matter of yours  if you're seeking an and then press you're seeking to amend your complaint so and you're asking that of the court of appeals correct correct so how do we assess whether or not ok well they're not in pal and we want to make sure you set forth all the reasons why you think we should reverse well i think the point is that they phrase in their opposition are  requires further the plaintiffs did not engage in any of the conduct that the court laid out that would justify an initial ruling open just miss court the facts of this case are rather unusual a dispute over great sales between peruvian entities that somehow ended up in american courts what's important here is that the plaintiffs seeking jurisdiction throwing itself on the court and say look we've decided we want to change the entire nature of the case this is a rico case we did that because we wanted to exert jurisdiction over peruvian entities that didn't work  didn't work and now we are what we're going to try to do is to reconfigure this case the rico claim to get rid of all of the peruvian defendants and try this is a state law case and assert that the court st these cases typically involve misstatements of jurisdiction for example a case that refers to residency rather than citizenship or says we bring this case under the constitution in a specific supreme court case and doesn't  allowed jurisdiction was never an issue first surfaced in the court of appeals and that's an important distinction although this is not directly addressed the question several cases from other complaint or is that an oversight as well that could be i'll use the word cured in this particular provision on appeal well judge kelly if i understand the question correctly please clarify if i'm wrong here but if we were to specific term diversity jurisdiction in standard i don't think it would and would in that situation be able to say well we're going to look at the facts and this is also important is that the court could then look at it's an acknowledgement there is nothing in the complaint that would allow this court to find ace's or diversity jurisdiction among other reasons one of the pla should be dismissed for lack of jurisdiction in d c and failure to state a claim and in the absence of the rico claims the court should decline to exercise supplemental jurisdiction when we then move to dismiss again in north dakota district court sokoto we again argued that the rico claim should be dismissed for failure to state a claim we also argued that the state look claims should be dismissed for failure to state a claim and argued explicitly that in any event the state l if the rico claim is dismissed in the alternative the courts could consider diversity jurisdiction didn't even so much as mention it nor did they attempt to amend for instance there are multitudes as well where they could attempted to just the men for instance when the cases st moved to north dakota it was a status conference plaintiff at that point time at that hey we've realize we want to amend there's nothing that would have prevented them from asking that at that point time issued a forty five day decision where he carefully reviewed the record of this case and that deal for him and goes through an in great detail why the rico claims can't be sustained against any of the defendants and then declines to exercise i can talk for seeing right away you're welcome to continue as you wish or you may close in closing it's time to bring this case to an end the earlier in had repeated opportunities to do so and then seeks to interject an entirely new theory of subject matter jurisdiction on appeal your honour's and ask mr cook if he could  course where there weren't opportunities to raise it and it was not that he didn't have any citations for that so while the court is empowered in a discussion to correct technical jurisdictional errors on appeal that's generally when the court's raising it it was on paper the st time and it is certainly not when plaintiffs are permanent sleep chose not to make that argument earlier in response to specific arguments by the defendants including mr pass that the case that the orphans don't make us go through this because we've already suffered this for five years and four months and two weeks in fact it's the plaintiffs who are the victims here because they weren't able to move the amendment as required by the rules or how did the perhaps any amendment was his way of saying anything i don't know what he meant by that but you didn't give him a proposed amendment to focus  motion and then he says beyond that any amendment would be on timeline you don't think that st paragraph is a denial my son no longer rule i think it's a recognition but i honestly believe that very well thank you for your argument thanks for the opportunity you're welcome thank you to all three counsel for your presentation today the case is submitted and the court file an opinion in d