below the first one is that the trial court determined that it should be up to an arbitrator to determine whether or not what the higher a nonparty to the distributor plaintiff distributor agreement should be subject to an arbitration provision in other words the question of who should decide that was deferred to an arbitrator and there is no question under controlling supreme court precedent and certainly in california as well that that decision must be made by a court if cannot be made tradition except if you believe he had ruled that it was over the ball and appoints he said it was you can also find statements that he said is up to the opportunity but both of you both sides seem to agree that he's defer grubber creation to the or to decide arbitrary delivery and that is also surprising to us because on page two of the court's order the court says i'm declining jurisdiction but the well but in another point the court said it is arbor so so where do you doubt about whether the court had determined governability you would have objected to the court's dismissing jurisdiction dismissing the case out of the court because it is really up to the operator to decide arbitration not how we read respect that's not how we read the decision and i will admit that it is well we were a little bit mystified when we saw it as well but when you see a heading that says arbitrator is going to decide this and agrees that's been conceded by our side ok subject to arbitration motion to dismiss we chose not to appeal that but we had to appeal this because it applied to a non signatory and you know if you look at the jacks case if you look at a number of the cases that we cited in california you have to go through a very specific analysis for policy reasons before you're going to make a decision that a non signatory to a contract is going to be found to a provision in the contract and there is significant harm that w is subject to an arbitration provision that's contained in all of these distributor agreement that doesn't just impact what's happening in california that protect that impacts will cry forever more one thing is for certain these parties ha litigated in numerous forums we know about to the court gets a judicial notice about a number of others there will be likely to be additional litigation in the future no court had to buy the appropriate analysis to make a decision about whether what k california yet here's the tough thing your honor that the case in utah was filed first nobody disputes that although trial court we don't think applied that factor correctly under colorado river and then you had the california case get filed a week later and then they were mostly still dismissed in both cases and then they sat for a year and the end i guess we'll get to this when we get to colorado river but the court reached out on this issue nobody three two should determine spouses that are preexisting relationship and we don't want anything out there suggesting somehow that there has been a determination made by a court based on appropriate factual analysis that would support those kinds of arguments either in this litigation in california or future litigation between the parties i'd like to move now to the second point if it's ok the second point is the colorado river doctrine and the court just got this wrong as well and again this was not anything that the parties to brief this was a year and four months after the motion to dismiss it been briefed the court as it indicates of the order decides who is pont the i'm going to reach out and talk about the duplicative litigation and nobody asked the court to do that and the court did not have the benefit of concede that the litigation in california is more advanced but once again the court used the wrong analysis food and i understand your argument about colorado river i guess my problem is there is no from what i can tell there is no problem with the faster why does the label matter but let me give an example one of the one of the areas where the court got it wrong under colorado river which also would impact this other determination is the first to file issue court we couldn't file that with the court because the court had not yet determined whether it had jurisdiction over the parties we still don't know that we had intended to present something to the court once the jurisdictional issue had been resolved hopefully in our client's favor saying under the first to file was filed first and then do any of the exceptions apply similar to a rule forty two analysis if you're talking about whether or not there should be transferred or consolidated there's a big long list of factors under any type of analysis there and it simply wasn't done by the trial court instead it reached out and brief this issue without any of us having out an opportunity to brief it at all and was the court mistaken in applying the colorado river factors absolutely has the court yet conducted an appropriate analysis as  litigation when you're looking at the first to file ruling and all of the factual findings that this stage of a motion to dismiss when all of the the facts that we allege in the circumstance in the inferences from those facts go to my client's favor that absolutely not happened yet look first of all you look at first to file and then you look at whether any of the exceptions prefer there's no case law suggesting the first to follow controlling that that somehow predominate over everything else i agree that it doesn't predominate over everything else but i think that what we're entitled to is an analysis that lays out factors that are for example premised on litigation between the does in state court based on principles of federalism and abstention and a federal court proceeding and instead throws those factors out points to what's happening in california says a duplicate of we just don't think that that's the bishop we want the opportunity to make the argument to the court even now the discovery's been done in california a summary judgment  being briefed and had been briefed there will be ruling at the end of that process there is a breaking point where we intend to ask the court to honor our plaintiffs choice of form and have that case with all of that discovery in place try it in utah year and nothing happened in utah and at that point we had to make a decision because our clients are getting crushed by what is happening here and so we filed counterpoints after a year in california and chose to proceed while all the while hoping that we would get a favorable decision from judge new for and then go back and say your honor we would like to at the appropriate point in time have this case tried in utah and we still don't have an analysis on that please i'd like to reserve my final  all they never wait they never raised the first the file argument will how could that nobody have raised the issue with regard to the you know your honor they could have actually because they have the opportunity to yes that's correct and that's the question and that's the question but when we look at the concurrent jurisdiction analysis when we look at the california action they not only did not raise the first to file issue with the court and so the court's going forward but they also filed their counter claims raising the very same issues that they had in the utah actual have they way that they waived it how on the very it's a big that it was it waived in court applied the wrong to well the point is that when we look at the first fire analysis we're looking at it now and we're asking ourselves presently under the first final analysis it's not an inflexible rule it's also a rule the context where the second action is substantially mature which is what happened here they let the section the second action go to a substantial say maturity all the way to the point of a most were some judgment they went through and they litigated all their claims all the way up to that point and now they're saying for the first time anywhere that the first survival rule ought to be considered they can't do that well with there's nothing you just do for apply the wrong test and in  federal suit in favor of the confederate states it so your argument when you're asking for sanctions is a judgment dooper applied the wrong test destroy haven's argument is judge new for applied the wrong how do we avoid saying just to provide the wrong step i disagree with your interpretation of what we wrote but what i'm saying is judge new for could ask about factors there's no set specific rules governing how he's going to question right yes that's a question whether or not there is there are two cases pending in federal court and then with regard to the second case substantially more mature an and the judge applied the wrong test can we say that it is a harmless error because if the judge exercised his discretion under the right test he would have exercised his discretion in the same way discretion to how to assess this situation that he looked at some of these factors is his discretion is not an error of law well why is it a colorado river prescribe a certain certain fact it's a certain steps and you cite cases like rocks that say well in colorado river they were they started by saying well there's really no specific test for this situation there are there is a body of cases that the always concurrent jurisdiction into several cases but there is not a test this is the first time that we're going to enunciate it when there is a pending state proceeding and the question is whether or river we have a standard for federal and state litigation where the factors are none seeded in the decision and then we have the second one which is this case federal federal and again with regard to federal federal litigation colorado reverse that specifically as and fast rule this is a jurisprudential rule and this judge felt as though he ought to consider some of these factors he did but in the end he ruled precisely as the circuits have indicated he should which is there is duplicated litigation we can have these two cases going on simultaneously and so he dismisses the case on the very sound under the abuse of discretion standard if he has a choice right or rational choice was rational he said but that other cases already up to the point of decision we've got all the motions for summary judgment briefs we've got all the same claims in that action as it is here there is no right of a party to litigate the same claims against the same parties in two different federal court and that's what's up then to me they're asking decision that is in incomplete alignment with this second federal federal standard in colorado river and all the circuits decisions as well and the other question  administration getting regard to conservation of judicial resources and comprehensive disposition litigation i don't think there is any particular test as you stated so but we know that the judge here applied a particular test well there may have been crossed over here but how do we really know if it thought that it wasn't constrained by that test and it wrongly applied do we know what the result would be but i think it's very clear that if we were to if the score or two reverses determination and were to allow the case below to proceed we will very much have a situation where there  courts proceeding on the same progs action and that without question would violate the federal federal standard in colorado river it would be an unprecedented move in the circuits well you'd have an opportunity if we if we reversed because it's abuse of discretion because there's no you know the wrong legal standard whatever when she have an opportunity to go right back and say now judge please please make it clear that you're dismissing this not based on the colorado river factors but based on general idea would you not expect the court to do something well i guess the question all boils down in the end the abuse of discretion standard and whether or not when you look at these discretion standard in light of the federal federal context in colorado or what that language is though no precise rule has evolved and the point that i agree with you you know i use the word standard no precise value to construct exhibits was this judge of using his discretion i think very clearly it's the case that this judge was not because he did not exceed the bounds of rationally available choice given the facts and circumstances in the end he got it right with regard to the disposition of the case this is again going back to an area of inherent control that you prefer the best in the district courts over there docket docket management in the end this is a procedural question and so  with regard to whether or not the issue is right you have a correct output you have one that is consonant with the supreme court decision and then you have one that in no respect violates that standard which doesn't invite under colorado river the judge to recognize that there is no precise rule that has a ball now in the california case did you argue in support of the motion to causes counter claims that those should have been dismissed in california that the appropriate starting point is the first to file will you know we tried to get one court out of that  plane i understand the read brief that is exactly the same claims that are being prosecuted in the complaint in the new utah case correct yes and the first to file rule is there anywhere within the set of factors that are prescribed in colorado river no that's another jurisprudential consideration heart so to recap you argue in california that there that the starting point should be distracted or that you've just conceded was obit it in the factors that judge knew for consider in this case right well here's the here's here's the point on that we did raise it there because we didn't and you're set telling us you don't have to consider all at the start of the case yes we will when they first file a counter claims we made that first the file argument the court never reached so it continued on with the litigation they never raised it they never moved in either jurisdiction for it and so the court continued on and they continued to prosecute their counter claims all the way up to the point of summary judgment briefing so we're we're left at a time when the new the utah  reaches the motions for the motion to dismiss the utah court is looking at it at that time and at that time it's looking at a court that it's substantially progressed the point of summary judgment whereas it had not and again the first spot rules not inflexible the court may have its reasons for not addressing it in california we don't know but the point was that when the district court bloke decided the issue it was clear california was it because california brought it all the way to the point of summary judgment and so in the end this is can entirely consonant with what the colorado river doctrine provides for the federal federal contract would have to be applied in the federal federal context that's wrong but in addition judge enough or did nothing in it by using a couple of the factors in his analysis to take away just a few quick points in my last minute first of all if you apply the wrong legal standard it is abuse of discretion it is clear can throw in the farmer case both say that and so that means there needs to be erie man because there is no way to know what would have happened if judge knew for had applied the correct analysis we don't know and we want the right to brief but i will say that these two cases will not be going side by side it will either be in california or in utah and judge what was what would have been the determinative factor that would have changed his result in your opinion he got first to file will backwards that's the biggest one by far but there's cable this is it is not necessarily that is not necessarily determine if that's where you start and he did not start in the right place i also want to just be very clear regardless of what happens on the duplicative litigation factor the arbitration issue has to go we can't have something out there saying that that will c