to quote dismiss an action not just a claim or a bunch of claims or even all claims against a single defendant it was an action in this court held that harvey aluminum that rule forty one's reference to an action quote denotes the entire controversy did you raise was a proper judgment whether there was a proper judgment is obviously addressed the question to the court doesn't have jurisdiction to issue a judgment that's improper obviously in order to answer that question we first have to know what we're talking about are we talking about the rule forty one dismissal are we talking about the district courts to final judgment because otherwise you it's hard to talk about it be can't it's intel it's not intelligible to decide whether or not the judgment was proper if we don't know which judgment we're discussing and we have to decide which judgment we're discussing in order to have that discussion in order to that's that's a no longer it's not a nobody it applies to the extent that some tech international says that it applies meaning that we couldn't refile the same claim in the same court meaning the do the district of columbia district court at the supreme court u s supreme court president agree art it means actually dismissal on the merits not pretend dismissal on the action just applies in the district court in the district of columbia rather than another federal court where there's where the action is wrong what's the reasoning for that  brooklyn bridge you could file it here in this building what's the reasoning for that again i'm assuming you mean dismissal with prejudice under rule forty one not dismissal of prejudice on the merits it's a totally different issue that's what you're saying it's not on the merits but the cases seem to hold that if of similar to a contract or already stipulated using the term offer of judgment i wasn't just de facto i stipulated dismissal with prejudice so that your clients could advance the issues that they want to advance on appeal first of all we had no make a choice in order to get an appellate ruling first of all we had no need to the d c supreme court d c circuit precedent two years prior to all this the cambridge the holdings case in two dismissal on the merits has to mean for us to the kind of purpose is that somebody fought about the case where the case was considered and decided in order for it to be binding on the plaintiff moving forward it doesn't mean that it clearly doesn't mean that so what does it mean i guess by default he  he said that well it has to mean something and it doesn't mean nothing and there's a there's a do there's a distinction in the rules between dismissal with prejudice and without so it must mean that you can't refile the same claim in the same court but it doesn't have the same strictures missal with prejudice from what they did a unilateral dismissal with prejudice under the plain terms of rule forty one both stipulated and a unilateral dismissal with prejudice requires no court action they gave up they gave up their rights he points to the semtex case like harvey aluminum he never raised the semtex case below they waived the harvey aluminum based argument aseptic doesn't apply because that case dealt with the fed it said that federal common law applies in a federal in a federal court but in a diversity action the federal court looks to the common law of the state in which it sits in the taylor verses stir jewel case that we cite on page forty seven of our brief the supreme court made very clear that any federal question case it's federal common law that applies this court has held repeatedly in the new miser versus baker case in the samuel case in the carter case which in turn cites chase manhattan versus cell attacks that a voluntary dismissal with prejudice operates as an adjudication on the merits they're arguing in this court that you now should ignore what happened in the c court that is an impermissible collateral attack on the federal court in the district of columbia inside recollection as in the district of columbia district where there were federal claims that yes you that yes it was a federal question case your honor but it is an impermissible collateral tack i'd like to turn briefly to the personal jurisdiction issue your honor the district court held announced a very clear rule that the test for general jurisdiction is at home absent exceptional circumstances this court in wallman versus p l o held that that test applies to every single defendant regardless of their nature in right versus lopez which post dated the wallman case this court made perfectly clear that the at home test applies to individuals i think right versus lopez is particularly instructive because it examined whether general jurisdiction was available over a venezuelan citizen who actually had an apartment here in new york found a found and spent about five percent of his time here in new york service was made by posting on his apartment what about just the sort of concurring opinion time where was she so it's berman so that still exists it's a concurring of under the circumstances of that case but there was a fractured court with justice scalia's opinion saying that taggers diction when an individual is tag was service while physically present in the form that was sufficient justice brennan's opinion said you need to look to more you need to look to the totality of the circumstances justice scalia criticized justice brennan sippin because he did justice brennan did not lay down a uniform rule that he was leaving open the totality of the circumstances we fast forward to dime learn when it comes to general jurisdiction and it announced a very clear simple unifying rule for general jurisdiction that this court has held applies to individuals but put its whole analysis was us the corporations in dialer there was no analysis of personal jurisdiction in the context of title jurisdiction or individuals or was the whole predi a dime where the foundation for dime where for for the corporate defendant in that particular case was premised on the paradigm example of an individual where is an individual at home an individual is at home where he or she is domi in the right versus lopez case this court cited dialer for that very proposition an individual is at home in only one place where they are dhamma silden individual can have all sorts of residences but only one domicile this court in the right versus lopez case your honor noted that yes time were accommodates exceptional circumstances but it is explicitly said that the second circuit is not aware of any exceptional circumstances that that would apply to overcome the at home test but brought in the context of a human service service those were those of boat service because of  cases yes the tag service issue was raised for the first time on appeal in this court determined in the right versus lopez that had been waived so it didn't address the additional issue but if we're going to allow tag service over anybody in the world transiting through john f kennedy international airport it's going to create an exception that's going to swallow the rule in the words  this court in the brown vs lockheed case you'd be robin robbing diane were of it's meaning through a back door thief you'd be allowing general jurisdiction all purpose jurisdiction over anybody for anything that happened any in the anywhere in the world simply because they they were tagged with service while making their way through new york the tag service  also cautioned against territorial thinking which was the whole underpinnings of justice scalia's opinion in the burnham case dimer invoked transnational context as well so you look at dyner and you just cannot square dime where with the burnham case which never had a majority rationale dima was talking about jurisdiction over corporations and never said it to the contrary they never said anything to the contrary girding jurisdiction over people individuals not only that it indicates that the international shoe in the fairness doctrine court said recently in brown media are very clear to us to be a final judgment on the merits and some take international says what that means and has to be jurisdiction that's one of the requirements for us to cut it to attach not only at the burden rests with the defendant i think it's an it's an important point to take into account here the burden issue regarding some test some tech international research we've never held which is just so when samuels seems pretty clear i know that that was a little different context i think it sentence in that opinion that's relevant i'm explaining the sentence there were there was one sentence in that opinion that was relevant it doesn't explain it i'm explaining the sentence for you i'm telling you what it means is that because there was a simulated dismissal that was binding that's what made it binding the district this court excuse me never walk through the reasoning behind that never never considered why a u v unit unilaterally wasn't here but why the actions of the plaintiff could be binding in the form of a judgment for purposes the rest of the car and it predates some think it a national that's two and three it involved  collateral attack as i explained earlier this is not a collateral attack if i may like to get back to something international for one minute for thirty seconds if i can exactly the second there were some questions before regarding something that international support the applicability particularly regarding the fact that it was a diversity case and this is not i concede that but if you look at the pinion pages five of five the five zero six it's very clear with the court is doing there is trying to figure out whether forty one independently are to control regardless of the fact that both will reserve decision this case