what kind of crime well this is this is an interesting thing we had filed a motion a petition to compel arbitration in one thousand nine hundred five when the federal arbitration act was enacted a petition was an action in forget about well it is once once i've made that motion under rule forty one eight to the specific language is it has to be determined whether there was an arbitration agreement and there has to be an order issued to arbitrate w action in federal court but we at that time had pending our action our counterclaim our petition we complied with the federal arbitration act which shows you file a petition under section four under section  in fact commenced an arbitration of a certain subset of his claims with the n a s d against mr greene well number two i wanted to speak for the record that mr kaplan formally opposes the request for judicial notice relating to any document that were filed by mr green well earlier this year this case is fundamentally about the ability of the district court to manage the cases before it and its ability to exercise discretion in dismissing a case presented with a situation exactly like the one identified by this court specifically that the plaintiff has decided to arbitrate their claims and has decided to forego a federal for might possibly be able if you if you submitted to the opera trader it's possible they could go to court beforehand and say this can probably be it is possible that that set of circumstances could happen but it's equally possible that the parties could e agreements that form the basis of any arbitration the issue of forgery and fraud goes much deeper and it relates to documents involving financial transactions at least that's what selection the complaint now one of those transactions is now the subject of pending arbitration before the n a s d that that arbitration that is now ongoing with the n a s d does not report to reflect all of the activities that form the basis of the complaint before the district court but it does form part of a subset of those claims and that is being arbitrated now and the issue of fraud and forgery will be an issue in the n a s d arbitration and was not an issue that needed to be addressed by the district court now with respect to the issue that was raised earlier with respect to whether or not there is a counter claims here there is simply put no record of any counter claim ever being filed before the district court now in the context of rule forty one a one rather than forty one eighty two the law actually settled that a motion to compel arbitration is not in the nature of an answer and it's not in the nature of a motion of her summary judgment now treated as a motion then there is no counter claim simply put what the district court had in front of it were two competing motions one was a motion for voluntary dismissal under rule forty one of the federal rules of civil procedure and the other was a motion to compel arbitration the district court chose to reach the issue of the voluntary dismissal perched and that is a decision that made a lot of sense under the circumstances the district court was faced with a plaintiff that had chosen to forgo his right to continue to litigate the issue in political in a federal form what mr green wall was asking the district court to do and is asking this court to do is to remain and to the district court stance at least for a full trial on the merits of the validity question now there is no reason that the district court should have to go in through an entire jury trial on the issue of the validity of these particular seven agreements only to then send the case to arbitration to the extent that the rule forty one eighty two discretion to be thrown out the window in fact there are a number of different cases that strongly support the notion that if this court was to take any action the proper action would have to be three man the case and complaint that were in the in the words of the opposing counsel in that case simply bullet point allegations but even then this court remanded for a trial on the issue of the question of  series of patterns and practices of conduct and i take it that he goes to arbitration or seeks to grow there are both arbitration because he has a contract that calls for actually that it's not and it's our understanding i guess where you're telling us to understand that he is there in arbitration the care he gives me was forged to a contract that gives him that right and he's going to assert that that was a why he is in fact there he is there because to litigate and the federal form would be extremely expensive and because he wants his case to be heard and unfortunately in an effort to do that  decide not to oppose the motion to compel arbitration and has willingly moved forward in the our virtual forum rather than in the district court  if that was an issue by the seventh amendment and rule thirty eight about which was denied to them by the district court based on findings of material facts that were in dispute we believe that the core