reagan versus merchants transfer three thirty seven u s five thirty hand of the plumber three eighty u s for sixty walker versus armco still corp for forty six us seven forty and seven tec international versus avoid unfair or an equal protection of the law and want to avoid forum shopping now that's done well in the each of these four cases there was a federal rule of civil procedure that was at least indicated that it was court also up there on diversity in the federal court on diversity under kansas law are the statute of limitations in order to meet the statute of limitations or not only have to file the action that have to serve the action under rule three and action begins upon filing so the question was do me up why the federal rule three and say well upon filing these doctors n we're going to deal with that and the only way we're going to disregard that is if there is a problem with the enabling clause and that particular case involved a massachusetts statute massachusetts law regarding be a federal state independent action but the fact is that this again would be analogous to reagan and walker in that the rule does not prohibit the incorporation of the state of the state law ag not allowing the state action would lead to an equal protection of the law and forum shopping essentially the only reason bolton's or bank of america another case we cited regarding the citizen and he would apply decision and put the parties back based on equity put them back into the place they were so the only reason that that course of action would not the u s supreme court pryor and his u s versus very early five twenty four u s thirty eight have said that the reason that the types of actions the types of independent actions would have to lot of language in the in the california cases the talk about talks about the fiduciary duties owed by an insurance company to the insured and then they always kind of back off of that and say well it's not really a trooper do share a secondly assuming that he doesn't have to do that doesn't he have to show or or why doesn't he have to show that there was an undue benefit from the from the transaction to to providence i believe that the point was raised in our brief that's that there is a confidential relationship there is that type of confidential relationship in between you know months after time of your large misconduct by the insurance company plan of the insure nature of the relationship between the insurer and the insured was this disability was disability insurance and that he was getting these benefits based on this ability of of his inability to deal with these types of situations they had on several occasions attempted the same conduct and he just had great difficulty with the other that is it going to be every single situation that you have that that type of relationship i don't think you do but you do have one here and  how do why should we treat that the same as a marriage or or a well where you have these higher standards well your i mean the nature of the insurance the insurance company the insured in the insurance company  and especially in a situation like this where you have it disabled person who is dependent on this on this insurance company that the nature of that particular relationship is one that would require and in treated the same as if it were a will contest or a or or a or a marital dissolution that if there's a presumption because of the nature of the relationship that you don't have to show the traditional bad use of and you influence this as one of my concerns and then the other is that i have and i'm looking for help as to where california law gets you where you want to go well as far as the benefit that we're seeking to rescind the contract so i mean i think that rescission is going to be able to restore a benefit or it's not going to go in and that's not what i mean there's there's a line of cases that say you have to show that the deal was lopsided and then there's another line of cases coming out of the recent probate contacts and so you don't have to show it's lopsided you just have to show that a party attained benefit the party th influence the contract attain any benefit ok and what i'm saying is you're asking for the benefit of the most liberal standard on both of these points both on the degree to which the contract is lopsided and the degree to which you have to plead answers no and then the court asks whether the court should look at federal or state standards in deciding that issue a court would look at federal standards but it really doesn't matter because the court court and got into federal court because the playing finding federal court and the prior action dismissed in two thousand and one was also filed in federal court is no longer subject to being vacated it throws their throws his claim out and the question is does the court because here in the case now the current district v shortens the time limit for bringing it's a one year statute of limitations vs the california longer but i think it's a four year statute of limitation on bringing in a fr influence he won't lose on the merits of that aspect of the claim because he didn't bring it within one year isn't that correct he won't lose that will be a reason for him to lose  within the time limit allowed by california law for the seven state court he could have brought to try to undo the settlement agreement and whatever else that settlement agreement caused him in terms of problems ok so it would not have been he filed in federal court within the four year statue of limitations that california allows for that correct  wins and gets a judgment from the district court in this case that yes and do influence the so that the settlement agreement was obtained by under the influence and it does resend ok but now he has  impediment because he has part of the settlement agreement fact of that undue influence to a settlement agreement was that a district court file entered judgment of dismissal which but for the settlement agreement it presumably would have not done and you're saying a ha he can't vacate that because the one year statute of limitations has expired on that and he should if he was going to and that's his only remedy so that he may have won the battle but he's lost the war and that's and they are saying sixty i think now and there he may have certain remedies if the settlement agreement is vacated but reviving the prior lawsuit is not  lawsuit the present lawsuit was not such an action but even if the courts not even if the court work why not because there was and it was not raised in the trial court there were no pleadings that asserted the grounds for  vacating a judgment in the trial court they weren't considered by the trial judge that issue was not briefed it was not part of the record in the trial court but even if it were  your honor the the plaintiff was an insurance agent who had been paid for thirteen years span of time is for benefits for total disability the family found out that he was making hundreds of thousands of summary judgment but i don't understand why the pleading stage what the plaintiff has a lot and i don't see the complaint talk about how insurer had made hundreds of thousand dollars selling insurance while i was claiming disability benefits i don't know how that's before the court and letters and so forth that were attached to the complaint as ok is there anything in the district court's adjudication that says i find that plaintiff was in fact collecting hundreds of thousands of dollars in insurance premiums and other commissions  as a result was not properly disabled during that time period so i'm not sure what this argument supposed to lead is to a conclusion at this stage i mean i have trouble understanding the theory of why this case on the facts as they appear to me but those facts aren't as of record as in terms of supporting the district court's conclusion now and so as a pleading stage matter what is it that that falls short here in this complaint  fraud a plank just in a lawsuit all he wants if you can get the plaintiff to sign on the dotted line dismissed the case and the plaintiff would have no relief even if you can prove it used a fraud and entering a settlement because in the meantime the clock was ticking on the original complaint claim years ago if in fact you achieve rescission doesn't that give the court authority if it decides rescissions appropriate to put things back into place the way they were before the fraud absolutely so long as they  and in order to get to the somehow bring yourself out of the one year time limitation supreme court has said there must be a great news periods of justice and i don't think that has got to say i'm taken aback by that argument for a different reason which is the now you're offering is the core justification for the district court's action something that you didn't talk about at all in the brief and was raised by our courts question and that's surely not the ground cited by the district court reaching the disorder and entering the dismiss bad faith cause of action so the original claim filed originally was a two thousand or two thousand and one allegedly based on and based on the alleged actions and in one nine hundred ninety nine is that correct the original reacher contract and bed state and those entire actually including the cross complaint was dismissed in two thousand and one now what limitations period are you arguing has expired nights so that was that would suggest the problem i raised which is that if you go back to the date of the original occurrence and disregard the actions which are the source of the rescission claim you can get away with the fraud ing the plaintiff if you can get him to sign the dotted line  you act like the statue of limitations dating back to the original event just ran without being told in any fashion well your honor if the if rule sixty b motion had been brought within one year but that's not helping me exactly the same question is is well where does it say that that statute of limitations can't be tolled or excused if there's a showing of fraud there's not we don't we're not talking about a one rule when your rule under sixteen now we're  saying but for the allegedly fraudulent or unduly influenced contract he never would have dismissed those stay claims so the hold up the statute of limitations now gives the defendant a free pass for give up his claims using under the influence and coercion and then and them having the statute of limitations expire from from a an analytical standpoint how is that different from misleading somebody about about  years past parties come to a settlement plaintiff determines sometime thereafter gee i got the fraud in the settlement that got my signature on the bottom line but i'm go differing apply if and of settling a lawsuit your honor i don't believe that the defendant got a free pass in this case what you're telling is they should've you're telling us on the pleading stage because the amount of time that's passed from the date of the original alleged breach of contract and ninety nine when the benefits were cut off the settlement was in two thousand and one that's two years later you're telling us that that passage of time continues to count and you're saying in terms of addressing the harm that was allegedly caused by the settlement agreement now federal law will govern the remedy for the fraud that is because it will the statute a limited if you were seeking to set aside the settlement agreement under california law as i understand it he would have four years or three years in which to bring a an action to set aside the fraudulent procured settlement agreement is that correct that's from ok but what you're saying is because the implementation of the settlement agreement was in federal court what is now governing is a one year statute of limitations because the procedure for setting aside the judgment vacating the claim and if your complaint and his cross complaint was a federal judge me therefore the california three or four years statute no longer governs he has now only a year in which to bring the action to set aside that's not correct and if fiske case were in state court let's say all of these events had taken place in state court rather than federal court in order for the plaintiffs to vacate the state court judgment he would have to file a motion under the d p p section six sixty three a one hundred eighty days so what you're saying is that if you deprive him into entering into settlement agreement and he has four years or three let's say three years three years in which to bring because he discovers the fraud and there's no reason he would have discovered it earlier he discovers it to you are two years after the settlement agreement and the judgment implementing the settlement agreement have been entered you're saying that he could win on the merits of his frock claymores on do influence claim but have no relief because the court would not be able to on do the dismissal of the original action and meanwhile the statute of limitations which the filing of the cross complaint did toll at that or did he was within the when he filed his cross complaint was within the statue limitations that keeps running and if at the time he discovers the fraud and can get into court and get a judgment and get relief in state court the statute still continues to run so he gets a pyrrhic victory because of insured and insurer characterize this one involving quote unequal bargaining power in which the insured must depend on the good faith and performance of the insured now that's not to say that that's a completely you know as high as some other fiduciary relationship that might exist between attorney client and husband and wife but it's certainly that type of we can read the case yes that type of relationship and one other thing you're honest as defendant next there might potentially be other remedies other than these particular if