resolved by a simple and straightforward reading of the bankruptcy courts order in preparing for today i was reminded of a quote from the late justice scalia that words have meaning in their meaning doesn't change the meaning of two words in the bankruptcy court order control this case vacate and resume we have an order vacating the stay permitting cox to resume a specific complaint in a specific case with a specific case number there was not to resume a nebulous cause of action not to refile but to resume and prosecute a specific lawsuit resume problem though as that isn't it that and then if the court had an old to stay it seems it would be clear that it would take it right back as if the state had never existed just as an element if the court vacates this day then arguably that gives you the right to file another action which ultimately you did hear on the thing but doesn't resume create sort of an ambiguity i'm not saying what i'm saying that cuts against your for either but that's part of the problem in the cases and it no your honor i would disagree because i would say there would be an ambiguity if the order said resume claim or resume a cause of action but were it's very specific as to what is to be resumed what's to be resumed is a complaint and a cause of action in a case entitled cox the specialty vehicle solutions that has a case number so i would agree it it would have been vague if it had said resume your claim but it's not saying resume your claim it's saying resume this case and as we pointed out in in our briefs i'm sorry three sixty two d allows the bankruptcy court to an older stay to provide this retroactive reinstatement and the appellant's position is that the district court's decision conflicts with three sixty three sixty two and therefore we're asking a reversal and even under easily while our case factually is entirely different from easily the sixth circuit recognized that a nobleman retroactively validates a complaint and this is precisely why the thirty day grace period under section one awaits c of the bankruptcy code does not apply to a moment's section one awaits c only applies if the stay is terminated or if the stay expires where and there's quite simply nothing to refile so there's no thirty day grace period to refile something if if the stay is a normal so we believe that the district court also by so broadly reading easily and i'd like to drill down a little bit into the difference between this case and the easily case here we have a valid bankruptcy court order that an old the stay there was no such order entered in easily in easily the plaintiff went to the bankruptcy court and asked the bankruptcy court to allow it to file a claim so that it could be treated properly in the chapter eleven plan and to modify the stay to continue with the state court lawsuit the plaintiff never asked for a moment what the bankruptcy court did in the easily cases that allowed the claim but it didn't allow for the modification of the stay and i believe the court's reasoning if i'm reading properly is that there was no need continue the state court lawsuit if the claim is going to be allowed in the chapter eleven plan and easily talks about how the chapter eleven plan provided for these case these cases these personal injury cases to be paid through the plan insurance proceeds so we have the claimant in that case being treated under the plan and it was not until after the plan had been confirmed and the bankruptcy court case was dismissed that the plaintiff went back to mint and the seventh circuit in the companion case judge easterbrook found that the bankruptcy court had lost jurisdiction at that point to enter any sort of order because the chapter eleven case had been confirmed and the case had been dismissed so by the time the defendant in easley files its motion to dismiss unlike here we have the plaintiff's motion in bankruptcy court to modify the stay was actually denied and the seventh circuit ruled that the bankruptcy court could not in all the stay so we have no order in the easily case and knowing the stay here it's the complete opposite quit cox files this lawsuit unbeknownst to him the debtor is the defendant is a debtor in bankruptcy quit cox then finds out that the debtor is in bankruptcy goes to the bankruptcy court and the parties enter in agree and i accept this argument that you're making but you haven't once mentioned the problem with the case and that is that that agreed  order and your motion so spoke about a priest filed that spoke about the case as if it had been filed before the petition and the relief you asked for was not an element now it may very well be that in the end that's what you got but don't you think you have to address those problems head on absolutely your honor  and i understand that it's the pelleas position that somehow the bankruptcy court was misled or there was not proper information given to the bankruptcy court in the in the application but first of all it was matter is coming before the court and if you want to object you have twenty days to object it was in the notice it wasn't in the actual motion itself and that's important because the parties themselves knew the chronology of the events that's s can't sit here with a straight face and say well we we didn't know that you filed the lawsuit after we filed our bankruptcy court case so the parties knew so if there was a chance that anyone who would have been misled by the notice it would have only been the particles and the parties knew knew the chronology of the events the court relied upon the motion and the motion itself does not mention that this is a this was a the core of the lie on the motion or the order well i think the what the order itself says in the preamble to the bankruptcy court order it says upon consideration of the motion it is order blank so i think if you're just going to take the bankruptcy court order at it's straightforward plain meaning it relied upon the motion what did us for in the motion i think you're better off with you with the other answer but what did you ask for in the most well what we were asking for in the motion was relief from the bankruptcy stay and we attached to the two at the proposed  and the proposed order in there to your honor's point did ask for a vacation of the of the of the state and did ask to allow us to institute or resume the the state court action and somewhat ironically when the parties were negotiating this agreed order as for yes is the party that withdrew the word institute so now cox is in sort of this this really you know difficult spot where if you read the bankruptcy court order you know if you take out that word institute it almost seems like if cox were to file a new lawsuit it would be in violation of that order and with the word resume in there there was nothing else for him to do us drafted the order s p s has taken some varying positions on this but it's important to note that they were the they were the author of that important part of the order and for that reason it cannot be said that they were misled and it's our position that the bankruptcy court was misled the easily this decision is also distinguished in this case because in easily the court found that the debtor did nothing to lol the plaintiffs into believing that the debtor would not rely on the stack and he had that's exactly what the debtor did the debtor the defendant entered into this agreed order that said you can resume your case and that won't cox into believing that he could resume his case and then thirty five forty days go by and they file a motion to dismiss and say oh by resume we really meant refile so i think the facts are actually in opposite easily so this court doesn't necessarily need to rethink easily in order to rule in our favor another issue that was raised by s p s in their brief is whether or not this should be petition request bare bones we're letting the parties know this is coming in front of the front of the clerk in fact i think it says here's the proposed order if nobody objects we're going to submit this to the court so i think perhaps in our fairly drafted the motion is but i think it still goes to the point that we what the what s b s was clearly are i'm sorry what cox was clearly asking for was a vacation of the stay in took to get back to the point about whether this should be noble or not i would just point the court's attention to our response to the motion to dismiss its record entry fourteen and there cox made very clear that the bankruptcy court and no retroactive retroactively validated the stay the parties were to resume their case the suit was no longer void and the bankruptcy court knew full well at that point that was it was a knowing a post petition action and those were all raised in the initial motion to dismiss and with that your honors unless you have any other time i will just rest for my reply thank you counsel please the court counsel your honour's i think one of the key things that that must be addressed up front here is not only appellant's brief but also most of the argument that was made here today and that is that they are impermissibl arguments and evidence that were presented to the district court for decision on the dismissal and then on a rule fifty nine motion or on appeal i think it's important that when we consider a grammy de novo review of the trial court's dismissal both the first and second suit that you look at the evidence that was presented to the judge at that time most of this evidence that has been argued both in briefs and here today came in under the rule fifty nine motion it was not presented to the judge at the time he decided to miss those actions now judge to par on the role fifty nine motion declined to consider most of that information and evidence simply because it was all available to the appellee prior to ruling on the motion to dismiss and he found under the six circuit rule of leisure caviar that it was not proper for them to present new evidence that could have been presented originally so when we talk about a great deal of what he's presented here none of that was presented to the district judge  which we will portions were not presented where all of this information for starters about how the agreed order came to be drafted who did what with the agreed order how that was had the order it did have the order but he's argued here today  pointed out here today that s v s was the alleged author of this order first i think that's not entirely accurate based upon if you compare the order that was proposed in the order submitted but the affidavits that were presented later in the e mails that present later none of those were presented to the district court initially there were a lot of other arguments in his brief that he has chosen not to bring up here today such as the judicial stop of which i'm not going to take the court's time to go into his i don't think that's a crucial issue  in terms of how the district court should have handled it well what was presented to the district court was simply the order that says or the motion that said we've come forward for pre partition we we found a pre complaint or asking that the stay be vacated and that we be allowed to resume that case continue with what was perceiving and you have an order that it allows that to resume i think the district court when confronted with that it's it is ambiguous it's extremely ambiguous but at that point time i think the burden is on the creditor plaintiff what have you in the case to obtain the proper relief before going forward because otherwise under easily and the six circuit in most of the circuits the filing of the initial complaint was void there is no question when the complaint was filed the automatic stay was in place so absent clear relief from that sta i don't see how it could have gone for the district judge ruled any other way the order was entered so something was done and the parties were we right on it in terms of their understanding so i don't see how the district court can ignore it i mean i'm asking the question what is the district court do when they're when the order is ambiguous on its face i think what judge departed in this case was look at it is  that the state had been lifted and allowed us to come back to make the judge relied on easily and usually has nothing to do with this case in my view easily is completely different and the judge said well there's easley and you lose with that oh i'm not even sure the judge ever interpreted the order and i can't answer that because i agree it's not specifically outlined in his ruling whether he did or did not but the fact remains if you look at what occurred in the bankruptcy court despite what is said here today we have submitted an affidavit from jennifer mcentee who was the bankruptcy attorney for the debtor who said in all of her conversations with  bankruptcy attorney that she understood it to be a pre partition action she was she did it knowledge she removed the word institute from the order because she saw no reason to institute a pre partition action and clearly stated in her affidavit that had it been devised to her that this was actually a post petition suit her response would have been quite different she fobbed s v s in the bankruptcy filed an objection to the motion on some of the very grounds that have been discussed here today in that the relief sought in the notice and application on the i'm sure there is a motion per se but notice an application was very vague and unclear that cox had not provided any clear facts to support the relief he was requesting or e part of the problem may be here that the bankruptcy was in pennsylvania new jersey new jersey and but toward action was not and so once the third action was filed you had yes now i was torn attorney as the toward attorney in the kentucky case i was not copied on any of the bankruptcy pleadings i was not made aware i was not presented with any of that information certainly if they had provided a courtesy copy or included me on the captions i bankruptcy court to go to a creditor and say are you sure this is actually the relief you want the creditor came there and said i want relief from a firm or preposition action and i think even if you look at the if you treat the order as a knowing th stay the order says nothing about renting renter active relief and if you look at the various cases that have come out from the other circuits and even the sixth circuit addressing gnome and they all say that when in order when a bankruptcy court they can grant retroactive relief there's nothing that says an omen must grant retroactive relief this order says nothing about retroactive relief retroactive relief wasn't even requested there's no indication of retroactive relief to what there's no indication that that the violation was are you saying that if the if the order had said an old rather than vacated that there'd be a problem with the order no i'm saying if the order had said but you would have an argument that it was an old but they still couldn't do anything because they didn't have the magic word retroactive and i'm not sure that a order that says an old without specific granting of retroactive relief provides retroactive relief right to act of to when but but but but that's the point that i mean that's the nature of the a moment said you can resume your lawsuit i mean that's a fair reading  was amended by s b s to reflect the relief requested well we ordered it back could apply to both it could apply to people to petition and it could be applied to underling post petition except a part of the part of the reason that one must file a motion and specifically ask for specific relief and what you're looking for is to put the debtor on notice of what's being sought and to give the debtor an opportunity to properly object and to have a hearing if need be it's not like it was a wall this complete wall what what was negotiated as i understand it i could be wrong in the bankruptcy is that the plaintiff was going to confine himself to the policy and certainly you know what would bankruptcy clearly do with there was an overlap between the products case and the bankruptcy case if that was the resolution ok you're going to confine yourself to the insurance money and we're going to let you go forward i mean that's how somebody reading it would think that it was to proceed and i don't think they fully waived their right to anything but insurance proceeds because the end of the order specifically states that if it turns out there's not coverage they have the right to come back to the bankruptcy court for further relief it's an atypical order i think in that sense in that typically you see a creditor or a plaintiff in that situation waive their rights to anything but insurance proceeds and will not come back after the debtor for anything this order specifically allows them to come back if in fact there was not and if there's no coverage of the different from being but then we were going to come back to the bankruptcy court that's true but i don't know that there's anything in three sixty two that states having insurance or not having insurance is one of the grounds looked upon to allow retroactive relief unquestionably when there has been violation of the stay and i think that's part of the issue here is that the stay as has been interpreted by this circuit and others the stay is to protect the debtor although to balance the rights of the creditor and what this court has previously held whether there are differences in facts and easily or not but that if there is a violation of that stay there are only in limited circumstances in which that stay or that violation should be validated this does not fit one of those exceptions but it was a stipulated order so the judge didn't go to the and there was no i'm going to agree with that but it was a stipulated order and whether it's an error on behalf of both parties perhaps i still don't see how you can obtain the relief that they're claiming they received when that's not what they asked for and when the bankruptcy attorney for s p s specifically says in my conversations with counsel for cox it was always represented to me that it was a pretty petition suit i would not have been greed to this order if i  before the district court but counsel was arguing if i understand it correctly even before the rule fifty nine he was arguing that that's what this order does that this vacat s permits to resume that it wasn't lifting this day it was a lifted that's i guess the problem it's still the did not validate the complaint and i guess that's the question is it still did not validate the complaint let me ask you this question if suppose then that this suit was filed when it was fi  to a person in the plaintiff's position relative to the statute of limitations he filed albeit with a stay in place but within the statute of limitations now is is that is that stay in effect told the statute of limitations so that after the stay so of after the bankruptcy was completed his bankruptcy and i think that that's why there's that grace period that's allowed under section one one it wait to allow for an extra thirty days after the stay is lifted or ins in order to refile the complaint my question is  the thirty days i understand but the new suit of course would have been filed way beyond the statute of limitations but because the original void suit was was  filed within the statute of limitations would would be he thought would the plaintiff still be able to resist a motion to dismiss on statute of limitations i think he would if he had filed the new suit within thirty days of the bankruptcy thank you but like to address judge white's question about what if it is ambiguous on its face we don't believe obviously that it is but the judge in its judgment judge the car really didn't drill down on the difference between this case and easily and that in part is why the plaintiff filed a motion to alter army and we asked for hearing on the motion for alter him and then in fact the plaintiff before we filed the the judgment was even entered asked for a hearing on this matter so i think if the court is inclined to rule that this is in big us and there needs to be more argument or there needs to be a factual record developed i think a remand would be appropriate in that circumstance where you said us for hearing what we asked for a hearing and the after we filed the response of the motion to dismiss cox asked for a hearing and the court didn't grant that here and then also when we filed the motion alter or amend the judgment we asked for a hearing there as well and the court did not grant here and the hearing that you asked for or before decision was what it's not really clear from the record what the the hearing would have been but it would have been with regard to this motion to dismiss because that was the only matter pending ok and and again what what do you do with the fact that the motion in the bankruptcy court didn't use the word in all well again what's controlling here isn't the motion itself it's  order of the bankruptcy we could have asked for something we could have asked for a claim in the bankruptcy court not even asked for a motion or not even asked for an omen or not even asked for a stay really if we could have gone to the bankruptcy court and said we just want to claim in the bankruptcy case your honor just like any xli and if the court said no i'm not going to give you a claim but i'm going to unknowable or i'm going to vacate so you can pursue your cause in kentucky court then we'd be in the same place that we are so i really think the what's in the motion is almost irrelevant because we have a court order that says that the stay is vacated and we can resume i would disagree with the point that there needs to be some sort of finding every time every time there's an unknown and there needs to be some sort of finding of inequitable conduct on the part of the debtor because otherwise you would never have any of these stipulated orders the danger there is that if you need a finding  equitable conduct the debtor would never consent to that so you would never get a consent order and knowing the stay let me ask you the same question i asked your opponent a moment ago if you instead of trying to get relief from this they when you got the motion to dismiss of your tort case and found out that there was a stay if you had just done nothing but let the bankruptcy play out and then within the thirty day window when the stay with the filed the suit again would you have been able to do that and i'm sorry i'm not sure i'm understanding well instead of trying to get the sta lifted if you would just waited for the bankruptcy to play out would you still have been able to file your tort suit within the thirty day window no your honor i don't believe we would have and the reason why because i think the chapter eleven plan would have provided that you know all three petition claim is need to be provided for in the plan and if they're not provided for in the plan then the claimants don't have an action that's the purpose of the chapter eleven plan is to handle all pre positioned debt so if you're not treated in the plan or if you're not allowed to proceed as decor includes an liquidated toward claims yes it does claim is defined very broadly as as we cited in our briefs a claim is defined as a right to payment whether or not that's disputed or contingent and here we definitely have either a disputed or continued right to payment there you had to you had to proceed as you did and get some relief from the stay or you would have lost your cause of action absolutely and to the credit of the app pelley within i think nine days of their be being served with the complaint they gave us notice of  step so we had no choice but but to go before the bankruptcy court in fact if we hadn't we would have been sanctioned probably by the bankruptcy court thank you thank you  you folks ever met with the office or attempted to resolve this we did we had a telephonic mediation ok  well i mean we had a mediation so i don't know maybe you should talk on the way out