thank you may please the court i'm chris landau and i'm here today for abbott labs i'd like to reserve five minutes for rebuttal one of the most important advantages that our legal system gives plaintiffs is the right to choose their form in the first instance and the plaintiffs here exercise that right by bringing this lawsuit in their home form of tennessee but our system doesn't give plaintiffs the right to a do over after they've put the defendants to the burden of moving for s that's what this case is all about defendants are entitled to summary judgment on limitations grounds in plaintiff's chosen forum and plaintiffs are now shopping for a new forum in order to avoid that limitations bar by to make t basic points here this morning first abbott is entitle to summary judgment because there is no dispute about any of the facts material to the statute of limitations analysis under tennessee law and second because abbott is entitle judgment the district court heard by dismissing the case without prejudice to allow plaintiffs to pursue the same claims in illinois or abbott would not have the same statute of limitations defense under tennessee law with respect to the first point the district court simply misapplied settled summary judgment law it's undisputed here that the delano is didn't even contact abbott about their claims until after the tennessee statute of limitations had already one thus the lawsuit is untimely absent evidence that abbott waived the statute of limitations defense but there's no evidence in this case that would allow a reasonable jury to find such waiver the delano is dispute that by pointing to two forms of evidence first they point to a november two thousand and ten e mail in which abbott's counsel agreed to extend previous tolling agreements honor in other words that's the how that's before us we're on or again it is before you because it was before you in grover the exact same procedural posture where the case was being was dismissed under rule forty one without prejudice last below in grover they the plaintiffs yes over reversed it was the district court in grover dismissed the case without prejudice this court reversed the dismiss didn't decide the merits in that case or they did well you know they're different well but your honor again the merits point in arguing now you want to reverse the merits through the guise of reversal of the dismissal we want to i guess the question is it's imbedded within the dismissal border because one of the factors that you clearly look at and it's a dispositive factor where you're tied to judgment is the are you being stripped of a of a plain legal right are decisions it's been known to happen make errors excuse me it's been known to happen and that's no i but this is a very important point your honor i mean i want to make sure i can answer your question appropriately because the point is it your point but  i don't so it's hard for me to see how you can just say it's on quote it's it's plain in the sense that it's on question when the district court has already ruled in the opposite well again that maybe it's wrong maybe it's right but to say that it's so clear that he couldn't even dismiss without prejudice summary judgment and then dismissed without prejudice and so we're here we're entitled to an appeal of the dismissal without prejudice because the case should be over well the way that in order to analyze whether the court abused its discretion in dismissing  prejudice you got to look at the question of did you have a right to win in this form that this is not that complicated case the basic point is we're entitled to win in this forum the district court dismissed without prejudice and is forcing us thereby to  another forum where we're not entitle to win under the tenn satch limitations because that illinois would not apply the tennessee statute of limitations so the real question is here is is there any evidence that would allow a reasonable jury to find that the that there was a waiver of our statute of limitations defense under tennessee law the only evidence they point to are two forms of evidence first that how much effort to jewelled under take down is a certain amount of work to put together a motion for summary judgment is not something it is a burden to the preparation of a motion for summary judgment right but the point is by preparing for summary judgment that actually has legal significance because rule forty one draws a line in one of the factors you even said how much effort was well but your honor the point is and under this court's decisions in grover and rosenthal both point to the phillips case from the fifth circuit both cite this particular language with approval saying that where you are entitled to judgment as a matter of law in this forum you don't get into the balancing of the factors in other words that that's why i was trying to make this point response to your question the point is even though you may often hav multi factor balancing test where it's not clear that you are entitled to judgment as a matter of law where it is clear that you're entitled to judge me as a matter of law that's enough you don't need to get into how much of the plaintiff's delay and how much should you do again i  you to the language in cooper and in rosenthal that specifically says where the defendant would be stripped of absolute defense that constitutes per se plain legal prejudice to situations in the law or something where where one answer can be correct but reasonable lawyers come to a different answer i mean they have that under it we have it under lots of types so and that's when you certificates of appeal ability you know is it clear you know we have it under qualified  situations where you know we might decide a certain way and that would be the law but a reasonable judge could until we decided that way decided different way sure your honor and kind of situation exists that's not here those that are not here and that's the point are i not though it would seem like that would be the right because i suppose and it is what the only reasonable judge could come to that conclusion well that may be the standard our point is that if that's the standard why can't we say that a reasonable judge could come to conclusion because a judge actually came to this conclusion jury couldn't find waiver then a reasonable judge couldn't find evidence that a reasonable jury could find waiver i mean however you slice it your honor the point is there's no there there in this case i mean this is one of the most clear cut cases and if this doesn't constitute playing legal prejudice it's hard to imagine what would we have documentary imagine one where no reasonable juror judge would come to that conclusion but i think this is actually such a case your honor and with all respect you're saying not that the judge was wrong but the judge wasn't even real i'm saying i don't necessarily think that that's the appropriate legal standard but i think in this case the judge here misapplied plain summary judgment law the district court here said that the the nonmoving that you cannot have summary judgment as even if the evidence on which you rely is not disputed if the jury could disbelieve the undisputed heavens that is not the way summary judgment works the if you if the moving party puts forth evidence and the nonmoving party does turn around and say the following agreement was no good and it appears that you agreed to it but you know what you are going the point is what is the thing we agree to if you say we agree to toll the plant one critical point here not to lose sight of is that  the claims had not necessarily expired in every jurisdiction for instance at the point we entered into this november email the two year statute of limitations would not yet have run in illinois so it would make sense to enter into a tolling agreement but with  because the first e mail says it a number of cases where we were concerned about tolling expirations and then the email in question that your honor is referring to says expiration of the previous tolling agreements regarding sex limitations is wrap up because you're in line i'm sorry your honor the point is even if you construe this as they told me but it would because told agreement that began in november they do not cite a single case in the history of american law that says an agreement to says we will of court good morning my name is andy very from houston texas and i represent fred francis delano i think the threshold question that should be made very clear here is the scope of this court's review it is not in with regard to the decision on the merits of this patch of limitations defense it is an abuse of discretion and that is because the court's order very clearly both his first order and the second one they chad junk judge known for writing make it very clear that it's based on disputed facts there were facts there that were disputed the fact judge rogers is they did nothing with regard to this case except file a motion for s judgment no answer was filed in the case and as soon as they did i went oh my goodness i've been snookered here we need to file in illinois we have just recently amended a request for judicial notice this court proceedings and the circuit court in illinois with regard to this is a woman who was from north dakota who got histo plays moses just like fred delano just in the same time period before they're made to sue in tennessee who in tennessee she did not serve in tennessee it is all about someone who comes into tennessee susan loses or should have lost i guess the argument is and then tries to change the  that's the thrust of the you know whether they're whether they're right in their appeal that's what we should be talking about right it is my only point was when they say plainly go prejudice it's as if they are prejudiced somehow by having to litigate in their home state under their home states law and they close the prejudice as i see it is that they they elect to litigate in one state and then it then it becomes clear that it's problematic and so they try to back out and should they be allowed to do that and you can argue they should or they shouldn't but i don't see why the degree to which they might succeed somewhere else is relevant to the it only meant to address the playing legal prejudice argument all right but we get to whether this is something that should allowed or should be allowed i've linked questionable i mean maybe there wasn't much prejudice but the next time there might be more prejudice right well there might be but we've had it is that it's where they just know you know if you sue somewhere and you you have no basis for winning and then when the when the light goes on you just say well i want to back out i would ignore the thrust of what they're arguing right it's really fond of that up how i've responded that is we have plenty of bases of winning we had a warranty claim based on an express representation that it's safe to use humira with methotrexate that's a clear four year statute in tennessee we had clear facts from which a jury could conclude waiver are you backing out  right yes we do and then hand now all of a sudden you see this burdensome you want to back out right you know just say you have a right to do that we do have the right to do it we do have the right to do it i think judge young in his opinion pointed out that rule fifty six he was changed in two thousand and ten that says the court may or may dismiss and he relies on anderson and reads from the supreme court for invoking that judicial discretion just say there's a fact issue here i'm going to deny summary judgment and i'm going to dismissed without prejudice the case is only been on file a few much there's been no discovery whatsoever you're litigating seventeen other cases in illinois in front of a judge you both agree would be the judge to handle it i'm going to let that go on here rather than have litigation that's within his discretion it's not an abuse of his discretion to do either of those two things either deny summary judgment or permit the dismiss was no explicit claim but what we said in response to their statement of undisputed material facts is that there were agreements with them it was a very informal collegial handshake relationship between me and john donnell kirkland and ellis john here's materials on my case i want to come interview my clients in my office yes i do don't file suit my plan to be mad about that but yes i will and then the hole in the email confirmed previous towing agreements but john never said well we didn't have a previous tolling agreement on the dell in the case but we obviously did but these are they are informal telephonic discussions what i said in response to their statement of undisputed material facts is there is no clear written explanation but in specifically i would record their response to their statement so the twenty one and twenty three and then there were additional undisputed material facts that we've pursuant to the rule to put it all in context i don't agree with them at all i think there are ample facts from which a jury could conclude a waiver of limitations or a court could conclude that there's equitable toing and the judge never got to equitable telling he said yes there are facts from which a jury could conclude i wait for their disputed material facts i'm going to demand this and he ask he said do you want me to rule on your motion for summ waiver of the limitations the defenses limitations and we would respond with a waiver that portion would be a jury question and the the question of equitable tolling however is an equitable doctrine and there's no right to jury trial there the court would have to decide that's my view of it at least in this situation you know they cite a michaels and you're on that panel judge play i'm sure remember the case that case pending for years and years and years it was a night hundred seventy seven surgery the plaintiff opted out of a class action later and then filed the suit and the defendant came and said well there's a statute of limitation in the plane will you engage in some settlement discussions and the court ultimately held that there was no cause of action action and that's what constituted the plain legal prejudice there certainly is a cause of action here there are factual disputes about the applicability of limitations and particularly tolling and so this case is not michael's by a long  i hate to give time away but unless the court has questions that's really what i came to saying thank you thank you  yes your honor very quickly if i might three points i'd like to make quickly first respect to the question that judge waddington just asked opposing counsel whether they had disputed whether there was a tolling agreement prior with respect to the dell it was prior to november tw counsel said yes they did dispute that that isn't correct we in the way it works in summary judgment under the local rules in tennessee is that the moving party has to have a number of list of statements that are undisputed it's an incumbent on the nonmoving party to respond to that list with numbers in paragraph thirty six of our list of undisputed facts we set as follows the first reference to any tolling agreement regarding the delano claims is contained in e mails between plaintiffs and defense counsel in november twenty ten in there and that's on  page id ninety three in their response to that which is page eighty three zero nine there is no corresponding paragraph thirty six they did not dispute that point so there is no dispute on this record on the record as presented below that there was no told me agreement between the abbot and the delano was prior to this november two thousand and ten agreement and again i think then the second point i want to make the counsel just said here they had a white to dismiss their claim  without prejudice no that's the nub of the matter under rule forty one a that changes after the other side has answered or filed a motion to dismiss or a motion for summary judgment excuse me of discretion it was reversed in grover and an equal spent oculus when the when the effect of dismissing without prejudice is to strip the defendant of an absolute legal defense in other words if you win four may be can't the the plaintiff though we are entitled to judgment as a weapon in that we believe then that that's the issue for you there's a legal there's a legal question whether we're told judgement if we are entitled to judgment this is really equal spend talking and this court if we're entitled to to judge it frankly even if we're not equal spend talk is the issue was whether it in federal court you could have it for a non convenience defense there would be no for a non convenience defense in the louisiana state court that was the alternative was form be in that case and the fifth circuit in that case held it would be an abuse of discretion to to send the plaintiff to state court because that would be plainly the prejudice would strip the defendant of the white to assert it even without deciding that the plaintiffs necessarily mean that the and that's why this it would be unfair to the contrary the unfairness here just step back a second tennessee has a one year statute of limitations mr it's undisputed that mr delano and his counsel did not contact abbott for the first time until more than a year after his claim had accrued and thereby his claim was already at that point the time they first contacted us untimely under tennessee law then he says ok but you there is there is no you know i'm arguing about the well it's the related the merits of the statue of limitations but again it seems to me that that is critical if the question that you're being asked is are you being stripped of an absolute defense by transferring it then that necessarily requires you to analyze what is the absolute defense that you would be stripped of and our point here is the reasonability of the least but i think here whether you look at it reasonability or it is unreasonable when the statute had run and again this is an unusually clear case because we have documentary evidence is not a he said she said kind of thing there is documentary evidence that at the hospital mr delano the true you know was went to the hospital so we knew he was sick and he attributed to humira abbott's drug so and he didn't sue within tennessee's one year peer in fact he didn't even contact abbott they first contact us in may two thousand and ten which is about fifteen months after the statute of limitations began to run and therefore about three months after it expired so the only question then is is there did we do something to waive the statue of limitations essentially to relinquish that absolute right one of the only things he points to the only things he points to is well we engage in settlement discussions with them but under the michael's case just engaging in settlement discussions is not evidence of a desire to waive a statute of limitations defense and if that were the law that would be truly radical because that meant that would mean the defendants would actually would engage in settlement