manufacturing plant in them or california so i guess the question is should the cheese stand alone right i mean that is that's one of the questions is certainly should be california cheese your honor let me say that this the claims are rising california principal witnesses  involved in california and there are these are interrelated contacts and i think that's the key as we start our analysis of the venue this is a venue clause that is specific to this contract is a clause that does provide for a venue in exclusive venue and jurisdiction in colorado except it has an expressed carve out provision and that expressed carve out provision says notwithstanding the choice of forum if there are indispensable parties who can't be made party to the case in colorado will bring it where they can be made parties clearly that would be california your honor the district court when it concluded that the only other parties were parties to whom there were there was some sort of indemnity and that's not enough for  that's too old fashioned you move one one pal the other one's changed so they say it's like whack a ball where you going to hit the frog and the other frog shoots up but that's the facts of this case this is a case where one claim for example the porno and big d money we owe you money this is a cost plus contract and that's essential paragraph five point one eight point one of the contract say the way the owner gets paid is on a cost plus spaces the cost they incur get passed through to the owner that's an essential ingredient and in the case why this is not simply in a democratic you m m of telephone of california has a major of fourteen or twenty million dollar claim they are subcontractor and they are saying too big because they are not privy with what pray tell are saying you owe us extra money if you look at eight point one point six you'll see how it is payments because in other words you know there you don't have to worry about parties don't care about the real property i mean obviously we can and we can easily taste for california property take place in colorado or any other state but now we're just talking about a bomb why can we when we just shuffle off to colorado  let me see if i can answer it the answer i see this first we take a snapshot of venue when the actions filed we don't look to see where the parties moved by the time we get up in this court that's a starting point at the time this action was filed you when them was not subject to dollar or zero that is what will nine thousand be is all about the snapshot you're on i think i want to focus on is the claim they said the venue they say we have to bring their sent their position is it had to been brought in colorado and we couldn't they had recovered the namin use against us which i then wanted to resent as a past pass through it we're talking point yeah that what if is absolutely possible from the very moment you sign that contract that means that this form selection clause has absolutely no meaning because for one side of the car about a simple terms my question that does not apply no question this would be in california let me tell you why we know from stuart that the mere fact this form selection clause does not control what the court can do in protecting public interest we know that that's the holding we have numerous from contraries we have numerous witnesses we have the architect the center of the case in some ways with the project manager we have the property located in california if we try this case in california we'll have live witness on the stand and a much smaller number of videotape w my colleagues here who try construction cases will tell you to understand it you're ours maybe you're like me i'm a public guy a man a phone booth what's that construction place look like the jury needs to see what the utility room looks like to see whether or not it was too crowded to have change orders done this jury will go to that construction site if the case is in california a public interest not only that far less expensive it's going to happen that is your are under fortunate for exactly what because removed now the question and because as your honor knows from our grace they waived in our view improper improper venue by removing you can't join a party and say i don't want to be here they chose federal court but put it that's one side of your honor seumas no have said on balance where should this case meet if we were playing a family feud venue game nobody would pick anything other than california as the number one concern in this case and this case for all the contacts the parties the third party witnesses the view of the premises judicial economy so if it's fourteen zero six the court still must protect public interest factors and your are no two gulf oil one of the most important public interest factors is when we try that case will they be in the witness chair or will they be read through government that's one of the most important factors and there's there's no question they're going to have more california where this is in this case as we see it so your honor i have i did hear one of the reason why it's not a forcible it violates public said jones let's uphold the part of the same contract in a franchise agreement and the first line says we're going to apply the law of colorado and the second line says you know no franchise agreements are in forcible right california is a very strong public policy for cases that are emanates from the forum states rights not from some statement look at bike i rent boy or refer but your honor i agree with that that this is adults which is why i don't without belaboring it that's exactly what the indispensable party contract it was in was on this milk processing plant one hundred seventy five thousand square feet in california and they understood it and i submit they are for the public policy that in fact you cannot have eight major construction case within a walk transaction affirmative claims where there might be inconsistent results you can't have that in a form has nothing to do with where the property is located if it were end nevada or just in sacramento or a lot more california this case is a proper case in california and interlocks transactions this is a unique construction contract the allegation here and your honor i think that if there's anything i would ask you to read it would be the cause of action for declaratory relief it tells us about the interlock and said this is not where one person built the vent and spawn time song side by side by side they're all in the suit all in or walk each result will have an effect on another like flipping the really cute and that's why these adults put that clause if you ask yourself this question asked  my my my adversary why is the clause there at all if the only kind of situation we're going to dispense ability would be a major subcontractor construction issue where there's plenty of examples so you are i see my time is up i'd like  if i could have a minute or two for a bottle of gin and your honor let me simply say that this is a case where you take a snapshot of venue at the time the action is considered not based on information that took place now or six months to respond to a few of the commissaire made by counsel to begin with i had some things that i had prepared but i do think it's important that some of the comments that were made be responded to right away and first of all this concept of every i spent weeks in utah and depositions and the reason why is because the one thing that's been sort of swept under the rug and that is a big deal as you talk corporation my client is a colorado corporation all of the witnesses from the minute from the parties in this case that is the party witnesses are from out of state nobody is a california resident in this case in fact the longest deposition in this case and i know this is outside the judicial record but i'll just tell you right now if a fourth you know for analysis was done to now what i'd like to do is i'd like to just go back to how this started out the start opposite with a contract in the year two thousand i i know the court is rather brazen i'm not going to go through the briefs but there are a couple there are about three major issues that are very important the first one is and i want and i want to address the court's point regarding the the nature of this contract and that is is and i go back to the bremen analysis that they did at the time when carbon black was sort of the the  form selection clauses were looked at and at that time the courts of look this world is so preventable that we can't consider the fact that other courts can make rulings and determinations and and rule and legal matters and the thing that was i thought is very important here because there are certain key issues with respect to our legal system that we need to look at and that is the language in the premier morris that the form clause was a vital part of the party's agreement and it would be unrealistic to think that the party did not conduct their negotiations including fixing monetary terms with the consequence of the form was bigger and prominently in their calculations and with respect to that clearly if my client sat down with big up front these are two large sophisticated companies and big said we can't live with that form selection clause there would have been further negotiations they may not have been the consul initially suggested the farm selection clause that would be my client or why then did you writ soon big the right request it would've been the state of utah but the one thing is that i would tell you because one of the issues that has come up in the case and that is the question of whether or not any ambiguity in the form selection claw should be held against the printer if it's company and what i would say that is that  argument was never raised below there's no evidence on it you know and i do know i'm sorry but i'm just saying this is this is obviously a contract on a contract clause entered into between two sophisticated parties and so on and recollection was was a was a route thirteen ninety one then it was based on thirty nine he won and my recollection of that case and it was a distinction was is that where this case is removed and then a motion to dismiss is filed then as a fourteen and you conclusion as i stand here right now your honor i can't i can't specifically put my finger on ok yes i do want to go back to work upon what you made your honor my my my brief i'm looking at it now and the language in there that said that big the in the form selection clause in the prime contract my reference there simply meant that these people sat down in a room sat across the table and the bargain was anything in that contract that they wanted to line out the iraq line or not no i mis second part of the form selection clause and you're not standing language yeah the notwithstanding language that's i mean the same a lot of construction contracts and this is fairly unique yes and again this wasn't discussed below in terms of how that came into the contract so i just i don't we don't want to get into in terms of what that particular provision in there but what i would say your honor is that that language certainly would involve a situation for example where where there are indispensable parties for whatever reason let's assume for the for the sake of argument that you've got to california tort court fees are and big d and make him exactly commit a tort and therefore both of them or defendants on that particular toward i think would be very in palm oast impossible where you've got a situation where you've got let's let's say the liability is potentially joining that those particular individuals can be tried and separate in some other course that would be a case where this would apply and that you know that that would be in the kind of place  natural kind of place the party is sort of generically and a construction contract isn't there some force to the arguments that this type of clause was primarily designed to involve litigation that would necessarily involve sub contractors absolutely not your honor and let me explain why and i would go back to one of the comments are made before and i made the comment to judge coyle and at the district court and that is is the exception then will swallow the rule there are we went through this and judge coyle looked at the contract how it was to apply and as these folks pointed out there are actually separate contracts there's a prime contract which expressly says this prime contract rates no contractual relationship it provides in there for the hiring of sub contract and it says in there if you do contract with a subcontractor there is no contractual relationship between that subcontractor and this owner the track has been basically our litigation with the prime contractor is this your honor there is an allegation that the prime contractors owed money and there's an allegation on our side that the that the prime contractor delayed the project those are direct contractual obligations that arise from that specific language between the prime contractor this and the owner there is nothing that would involve the subcontract as far as we're concerned in that particular lawsuit we cited to the court to the hotel written our case which basically says an indemnity action and this was in fact wells order by the way that an indemnity action is not indispensable to the to do the so the main action and the reason and basically judge coyle ruled and said look you guys can have your action with the sub contractors in the state called california you can have your action with foods company in the state of colorado but the one thing that's that was important the judge found was that when you went in and negotiated and look at this contract you had to have contemplated that was going to occur this the format of this contract wasn't a mystery it's a big the big deal has a problem with it today but when they entered into it for instance one of the great comments made in the bremen case was hey it wasn't inconvenient to you when you entered into it how can it be inconvenient to you to litigate there now and by the same token when they entered into this contract they knew they were subcontractors they knew they were suppliers they knew the nature of the beast that they were dealing with and if what they're saying is is the existence of subcontractors the just the same thing applies and that is you've got a separate contract with separate obligations it's a fixed price contract between between the sub contractor university merrill lynch and big deconstruction it's a different type of contract a different animal altogether we would literally be instructing a jury with tuesday if several separate sets of jury instructions and a jury would be sitting there looking at us like ok i've got this contract that contract how am i going to discern this thing out and the fact the matter is is there t wholly separate contracts this concept that they that that one bounces off the other the changes we went through that in the district court level and i'm not saying that because the district court made that ruling this court can't reverse it because we dealing with well there's the university merrill jesse that's the other party that's out there and what i what i would say your honor is this is if the university of maryland and big deconstruction litigate a case and there is a judgment rendered let's say for one hundred dollars again under rule nineteen the court can shape that relief to make sure that that works but this concept that there would be that there would be a single lawsuit with all the fence all joined together that's just been pulled out of whole cloth as far as i know because there was no testimony at the trial level there was no briefing there was no there was no nothing regarding intended to have this kind of serial litigation that they could go on go on all over the place depending on i make a go california utah and colorado then i suppose what well and and again we haven't gotten to this but i have asked the court to figured initial notice and i have made a motion to dismiss on the ground that you very subcontractors and all these people there's eighteen litigants and so forth and so on i've never seen i've never seen him i've never seen a motion that the people can't be joined i've never seen a rule nineteen motion that a case needs to be dismissed because rule might seem cast as not whether someone is that i'm dealing with with what actually happened and really moving in appeal is what i was referring to there you know let's see there were a few things that were covered and now i think just simply because of the questions what i want to do is to see if i can cover a few things if the court has any questions and obviously i'll get them but starting with the removal issue one of the things that i wanted to point out of the court on this removal issue and that is that you know that there are there's a situation that a lawyer has when he goes into a case like this and that is if you take a look at it you say well in the state level if i answer before i filed my motion to dismiss based on improper venue well then i would have done it and i potentially waive the right to do that at the state level on  a federal at the federal level on a rule twelve h the same thing in other words i can't file my response of pleading if i do and i don't include objection to way to venue that i've waived so i look at those two things and we say when we take a look at it we look at lambert versus kaiser in the in the in the first  and the case is dead on as far as the facts in this case so one of the things that we did is they said well there's no there's nothing in rule twelve h that says that that that there would be a a waiver so we go ahead and we take a look at lambert versus kaiser and we want to make sure we don't have an outline to have an implied waiver so just the sort of use of belt and suspenders approach i just put a footnote in my route with fish and say hey you guys we're going to be moving to dismiss when we get the federal court the case is in this in this district tokio marine  on this public policy issue there's something is very very critical and this is really interesting because it never ever came up until about the last page of the reply brief in this court and it's very interesting and that is is the california  he made of the citation at the end of his reply brief regarding i think it c c p section for ten point forty two express the states that a subcontractor entering into a contract with a general contractor that if there is an litigate outside the state of california that that is cannot be enforced and i think it's very critical here and the reason i say that is because we have a utah general contractor so the state legislature in the california has looked at this and said look the sub contractor little guy who is trying to get it who is in california who does a job is going to be put i could hear the difference being and so if if we were to take a public policy argument that mr wagstaff making were centrally making california law by expanding that to a place where the california legislature is already looked at it and said no we're going to limit its application only to sub contractors that are residents in the state of california and i think that that's that's a very critical point you talk about the safe location terms the public policy and the safeco case doesn't doesn't stand for the proposition that you have well basically if you look at safeco safe those that pay have paid and the important thing there is if i'm a subcontractor the provision in the safe location would basically make it so that if there is a liquid general contractor and on the other hand the owner doesn't pay that same multimillion dollar general contractor and i'm a sub contractor if that's general doesn't get paid i don't get paid and i think what you see one of the things that you see sort of sort of prevailing here and that is is that typically when and when statute armed forces because somebody doesn't have a grammy it's just like a rule nineteen if you can to get kicked out of court not and not have what are we called or we're going to find a way to make the not allow that to happen in the rule nineteen so with that my time is up are there any other question but two minutes on the clock two minutes on the clock thank you roger let me start off by saying this court in murphy at page eleven thirty eight said that when interpret inform selection clauses you interpret them against the non against  look at the debt relief my client is seeking at the declaration between all these parties how many cost plus analyses in different lawsuits are we going to have the parties contemplated it here they didn't put it in a contract and didn't deal with the subcontractors parties intended this in this matter your honor you lend them was indispensable they have an affirmative claim based on passed through if they win that claim and costs are sort of that we have my client to pay that will be a my client be stuck with these of them but won't have any benefits in when they have to pass it through that's not a that's five point one and eight point one of the contract if you look at actual for of record seventy seven to eighty you read those clauses its unique contracts with a clause that took care of the parties contemplate it your honor let me close by saying two things one the public policy is vital and make it this simple if in fact my client and we are in recess