rules of construction and what happened in this case and the failure of a trial court to allow an amendment what happened in this case is c the trust became the holder of essentially a cyber chattel that is a the bearer bond that according to the complaint and fifth third has stipulated at footnote two of its pleadings that they are accepting as true the allegations in the complaint as true in fact for purposes of appeal so see the trust became the holder of four hundred twenty eight million dollars which is a portion of a bond issue allegedly from luxembourg paragraph sixty one of the complaint that was issued through an underwriter likes or bonds these are european bonds that were traded through an outfit called euro clear which apparently deals with these cyber transactions that relate them into the american market you just actual question and i guess i have the question  where are these bonds we don't know we were told and according to the allegations two things first they were returned to pershing which is the essentially the clearing house through the united kingdom in london we're also told that they were sent back to luxembourg what happened is once the bonds were allegedly sent back sometime in september of two thousand and thirteen fifty third ceased giving any information to see the trust now in the traditional transaction there's a paper trail people can follow the paper but in these transactions it's all in cyber in order to get any of the records you must have the user name the user id password and the transaction number and the system that is traded on which is uniquely fifth third not see that what they did was they entered into a an agreement a custodial services agreement which is at the heart of this particular litigation where fifth third would safeguard this cyber chattel is four hundred twenty eight million dollars promissory note at exhibit one of the agreement which was drafted in january on about page fifteen c the trusted i mean fifth third admits that they are the safe keepers and they have the says cyber item for safekeeping dispatched the bonds elsewhere without adequate notice to your client and you objected to that right yes sir and so given all of the suspiciousness that you just described to me why wasn't that enough to put you on notice that we had better get our act together and oddly enough because of the resnick case and tom lee judge martin was on the resnick panel we have to be able to plead that with sufficient specificity to a ege a wrongdoing at after that meeting we had nothing in hand that said where they senate who they sent it to how they sound it why they sent it they admit that we are the holder of that bond pershing was just a clearinghouse just a sales person or sales outfit why it went back there we have never been told not one scrap of paper not want to let tronic transmission we don't have sufficient facts to know what they did with it and that creates several competing possibilities and is it your is it your contention that still to this day you do not have  know exactly we don't know why it is less than the case wouldn't seem to me to be right or justiciable i'm sorry if you're correct that you don't know enough yet to say that this case is ripe and into something that yields a lawsuit this case even justiciable because the custodial services agreement did allow for the cause of action to be brought for breach of contract because in the custody of services agreement fifth third took our chattel they didn't give it back to us there's a breach of contract in the failure to give it back to us so you've sustained a ripe concrete and immediate injury is that it it's right for that limited injury it may not even if you have even if you sustain no injury i'm sorry even if you have sustained no injury yes because we are in titan because the as as the allegations show the bond matures on february tenth of two thousand and eighteen whoever is holding that can walk up to locks or or lock some work knock on the door and say here's my bond pay me well if it is being held in nominee form by pershing this name we go get our bond if it's been sent someplace else original movie ghost where they did this few keystrokes know and somewhere else if it went somewhere else in someone else's name and that is under paragraph twelve of the custodial services agreement gross negligence or intent or willful misconduct then we have a totally different situation the vigilant case that we cite kind of explains what that is when you have a stock it's volatile goes up and down every day but a bond is a promise to pay on a date certain just like our grandma bought the series ee savings bonds for seven hundred fifty and it became worth fifty bucks on february tenth of two thousand and eighteen that series of bonds is worth four hundred twenty eight million dollars it's wrapped around by a an insurance policy the vigilant case shows that that's normal course of business el paso floated a bond with they went through an issue or which was morgan that through an underwriter which was morgan that wrote the bond up and issued it in in that individual case drexel which is another seller bought it and because the new york stock exchange they put vigilant insurance on it they sold it to irving and irving said whoa wait a second these were reported this stolen let me ask you this  so obviously this case is about the one year limitation period yes and what happened between the expiration of that period and the date that you filed this lawsuit that gave rise to the injury or what new facts came to light to cause you to file all well all efforts to get information ok where did you where did you send this why did you send it to persian it's our bond persian is never known why well it actually didn't go there it went to luxembourg paragraph sixty one who in luxembourg where did it go not for you to tell you that we have our file no we have access no since fifth third holds all the cards we can't get any new information on anything other than the return of property now the one year statute and judge marcus you wrote in access now that there are five circumstances where you can listen to new arguments on appeal the first one is a pure question of law that's what this is how do we construe that one year statute that is written in on paragraph thirteen it's neither clear  nor is it reasonable why you know why florida doesn't allow you to change the statue of limitations but it paragraph twenty eight they agreed ohio law would control it's in bold print governing law or controls you would think cause of action regardless of for more than one year after the cause of action rose arose what is a rose that there's in both the discovery rule and in basic pleading there's two elements damages and the defendant did it we don't know what the damages are let us assume the innocent to this day you don't know what the damages are we we don't know whether their four hundred twenty eight million or somebody else has our bond waiting for us to come pick it up  complaint say your damages are four hundred twenty eight million pardon me then your complaint say that your damages were four hundred at this point we don't have our bond they gave it to somebody else so that's what we are asserting but we don't know it is possible at this point that somebody else has it because you're clear does work with ninety countries it was only delisted in the united kingdom but this goes back to judge newsom's question are you how did you know that when you file the suit but not know that at the time the limitations period ran one of the reasons that amendments are to be liberally granted is so that you can clean up in  drafted complaint i mean now is your time tell us how you would amend it well first we would we would file a request for return of property and discovery to find out where it went because in order to understand the nature of the damages here we have to know why fifth third senate purging they knew it was a locks or bond and remember this thing started in january they did their due diligence and then they recorded it on february twenty seventh is coming into their account through euro clear but ok how did how do you allege that around the statue of limits around the limitations period today ok couldn't do at the time you number one the limitations hasn't run yet because it hasn't arisen we have to know that we've lost damages under the vigilant case so what i hear you even is that you knew that when you filed your original one i mean how do you have more information now than you had th n not necessarily more information but the efforts to locate the bond and that extradition judicial information leads us to believe that there is a loss that we have suffered but that's all going through the computerized transaction system trying to track down where these bonds were or are but the the limitations in paragraph thirteen is in a paragraph clearly marked limitation liability any and fifth third disclaimed any liability express or implied for fitness of use and merchantability of a cyber chattel anyone million reasons to you fully and so you know the fact that it's in and a missed labeled provision of the contract i'm not really sure how far that gets you well you've got to look at twelve and thirteen as fifth third pointed out the two are independent paragraphs we two systems that fifth third offered and the the limitation of liability on that was to those two specific systems so if i read paragraph twelve which has no limitation liability says that will indemnify them for anything except willful misconduct or gross negligence and any losses or damages without a limitation is mentioned in that's in that paragraph and then below we talk about the e tran and security work stace work space stations then a logical reading would be ok this one applies to willful misconduct and gross negligence this applies to those cyber systems that they want to still use because they specifically name them put a different way if you want to chevrolet and bought yourself a camaro coupe and you open your your dealer's manual to a page said karen maine this of your convertible top you probably wouldn't read that one well they were using a cyber system works space station there weren't any transactions going so there was nothing that would lead them to until december of twenty fifteen to file a lawsuit against if their bank so based on the one year limitations provision seeders lawsuit was properly dismissed ohio which governs the custody services agreement has repeatedly held that parties can shorten the time period to file a lawsuit now supreme court specifically has repeatedly held that a one year provision and reasonable and appropriate and see the sights no contrary authority earlier cd was arguing that the limitation of time to file suit was improperly placed under the limitation of warranty heading in paragraph thirteen of the custody services agreement and that that somehow makes the language unclear but the language issue which is customary shall bring no cause of action regardless of form more than one year after the cause of action arose could not be clear in fact that's exactly what the district court stated when it dismissed the claim there's no indication how a limitation of warranty header would somehow make that statement misleading and moreover for over a century under ohio law parties particularly commercial parties are charged with knowing everything in a contract that it signs it's also in a surprise that a limitation of time to file suit would be among other provisions disclaiming warranties and limiting the types and size of damages and is judge newsome point out earlier it's just a thirteen page agreement for allegedly four hundred million dollars and here it limitations provision is a key provision that you would think parties would read and again in contrast to the authority in the briefs fifth third showing that these sorts of provisions are and forcible many of which are and forcible against consumers here of course their commercial parties seat it doesn't say any authority holding that have provisions location particularly in the commercial agreement renders the provision unclear and vig right at the and see this counsel also made the argument that the limitation of time to suit was unclear ambiguous in light of paragraph twelve but these paragraphs don't really have anything to do with one basically just disallowed as the bank from claiming then that he from c day in the event that the bank acted with intentional conduct or gross negligence has nothing to do at all with the one year time period to file a lawsuit and in fact again under a hospital court precedent every provision should be given meaning to be read as a whole so even if there was any sort of tension between those provisions the missed obvious and easiest way to harmonize enforceable they contend that the discovery will exception should apply to their claims but first of all has forfeited this argument because it didn't raise it below and second even if the court went on to analyze these issues under ohio law the three claims that issue here negligence fiduciary duty and contract which is the central claim ohio doesn't apply the discovery rule to those claims so there's no reason to apply the discovery rule to those claims when interpreting the contractual provision that shortening the statutory time to file these claims actually under ohio law does the discovery rule require requires sufficient notice to drag or further investigation or something yes your honor so there can be either actual notice or inquiry notice is what it's called under the hamilton and flowers cases that are setting in the bri another so even if it applied your contention would be look we had this meeting in two thousand and september of two thousand and thirteen we told them what we did they objected they should have investigated it yes and i would just add to that in addition to the fact that they were also told independently that the funds would no longer be listed in their account or in their account statements that they have alleged repeatedly in their complaint that this breaching of the custodian caused damages and then to not only the amount of damages the four hundred twenty eight million dollars that they're alleging but they also allege that they suffered irreparable harm presumably in two thousand and thirteen all of which i think would provide actual notice for ceded to pursue any rights that it believed it had and again we have to take the allegations and i said that because when i looked at the intermediate appellate more in ohio among other things they said quote no ohio court has applied the discovery rule to a claim for breach of contract fraud or a conversion claim the answer is there is no case you are aware of that has ever applied the discovery rule to a claim for breach of contract in the state of ohio i feel like i'm being set up for so reflect we also cite a house from court authority albeit not in the contract setting this is look the general rule is no discovery rule absent the specific statutory application of the discovery i suppose there may have been times when other claims such as legal malpractise claim which is governed by a separate statute which discovery applies sometimes courts are a little sloppy and they allow they would apply that statute of limitations to something styled as a breach of contract claim but in reality but so the last thing i want to do is mislead the corporate yes that is my understanding and related only for the alternative negligence producer duty claims i think counsel indicated earlier that everything rests on the contract so i think they're improperly pleaded for the reasons that went into in talked about the fact that the assets at issue were bonds the bank was a custodian with the custos backing up on the discovery that it's pure question of law correct or is it a mix the issue was never raised in the district court that's right your honor and i think the law is relatively clear that you are not to consider this because it's been forfeited but again assuming that you consider the issue again the discovery would not apply and assuming that you do want to apply the discovery rule and you borrow the law what the discoverable is for other causes of action they complain i think reflects pretty clearly that they were on actual notice as well as a reasonable  now made another argument earlier and essentially was saying that look because the answer as it is you are bonds therefore their claims haven't accrued yet for lack of a better phrase even though they repeatedly allege as a custodian of assets the fact that the assets are bonds has no significance at all to the breach of contract and the related tort claims indeed the vigilant case that c t was referring was actually a cause of action from new york where a bondholder actually think was a subrogate of a bondholder was essentially sealing the original bond issuer for a declaration of title for the bonds so if you do obtain the princip of the bonds and essentially the courts in that situation because they were barry bonds and because the claims because the bonds weren't yet mature ownership couldn't be determined until the bonds maturity date but even in that case again we're not a bond issue or we're not a month seller even in that case the vigilant court dismissed the contract and conversion claims they were at issue there so again the bonds maturity date ind you asking us to go ahead and address these issues that the district court never addressed or would it be better for us to remand the allow to to a mound and then let the district court address these issues in the first instance you should affirm the decision and will not address the issues that were forfeited below nor allow plaintiffs to repeat their complaint the allies i mean we the right to amanda's to be liberally granted right in the eleventh circuit starting from a decision in the early on its present day partying needs to move to him and their complaint simply asking to amend the complaint in opposition to a rule twelve decision is insufficient that's been repeated over and over again that did not happen what there was no indication below or really any indication here in the arguments in the briefing before this court what the amended complaint would look like what the substance of the amended complaint would be three there is no reason based on the one year statute of limitation provision that's at issue in this case why any hypothetical amendment would be anything other than a few times so for all three of the independen reasons the court should not allow the parties to mount at any point prior to the motion to dismiss plaintiff's could've sought leave to him and planes do it all the time because i want to get a sneak peek at what it is that the motion to is to make the reserve four minutes if you are may believe the court with regard to the amended complaint there was no opportunity to do so the lower court ordered paragraph number three directed the clerk to terminate all motions and close the file the case law says that you have to move to amend before or after the order well the lawyer went into can move to amend it under r fifteen of the federal rules of civil procedure you may have meant your pleading once as a matter of course within twenty one days after serving it you didn't do that then the rule says in all other cases a party may amen its pleading only with the opposing parties written consent or the court's leave but the court should freely give leave when just as so requires we have said in binding precedent as best i can tell that the method that you must use in order to seek leave to amend is to file a motion and that in the motion for leave you should either set forth the substance of the proposed amendment or attach a copy of the proposed amendment that's been our law for a long time and we've gone on to say that where a request for a leave to file an amended complaint simply is imbedded within an opposition memorandum the issue has not been properly raise how have you raised this probably in practicing law trial counsel thought he had filed a sufficient complaint he was confident in that position he did not come into the court house to amend a complaint he thought was valid then the court entered its order and that paragraph three terminated all motions and close the file he did not have an opportunity after the order to file a motion at all we have raised it here under as i said in the actual you ever go back to the district court and file a motion for reconsideration saying in words or substance you were too quick on the trigger judge to dismiss this case we're seeking leave to amend and if granted leave here what we in fact would plead in the new a complaint and here is an attachment of the emendation did you ever do that ordinarily one would do that but in i'm just asking did you do that here in this case because of the wording of the trial court order that was not done because the case was ordered closed the clerk was directed to close the case you would have still been free even if a court had closed the case to seek we consideration within a fixed period of time you could have gone back to the judge and said we think you ought to reconsider this judge and here's why here's if you don't know what we would plead here it is in black and white the law does not require a a litigant to perform a futile act the the trial judge was i believe abundantly clear when she wrote close this file terminate all motions all motions and that was pretty clear that the judge was not entertaining anything further with this further the statue limitations as we say in vigilant hasn't run yet because the bond has not matured yet we just don't know who holds it or owns it or claims that and we can't because we can't  do any due diligence because all of the records that would allow us access or uniquely held by fifth third i guess the difficulty i have with that argument setting aside judge marcus and his astute observation about about rightness and injury is that you've filed a complaint alleging a cause of action that you're now telling us has not yet accrued and i mean there is no one you know sort of throws around rule eleven you know sort of flippantly but i mean there is a rule eleven obligation when you file a pleading that we have a cause of action here and now you're telling us that it hasn't yet accrued i just don't understand that position there in the in the custodial services agreement where they took our cyber and then gave it to a third party they there is something they did with that was wrong the measure of damages we don't know yet because we have reason to believe that they've divested us of ownership but we need a hundred billion others to be able to plead that with specificity we can't do that until we can track the the cyber track of the transaction to find out where it went which fifth third hasn't told us they have a contract to obligation to us to give us that in the custody of services agreement that they're not complying with that they're not complying because they say the statute has run we say it hasn't run because the the bond is not yet payable even though it's still being sold on the market or was still being sold on the market so that there is a compensable damage if they have sold it to a third party we can't find that out unless we have access to their track on what they did with our bond and we should have been able to amend the complaint so and that's what we've asked for here under access now so that we can get to those records and find out where it went and for what reason it went there and it's it's a sizeable loss that maybe maybe but unless we have access to find out where it went we'll never know i mean maybe in one of the other eighty nine countries i don't know i wasn't there at the time but i can stand here and say we if we had access we could put in the transaction numbers we could track it down and find out how it went where it went why did it go to pershing that has never claimed ownership of it when they have admitted that it is our bond they took our chattel and gave it to somebody else that's a wrong what the measure of damages is i don't know yet i can't do that until i can amend the complaint conduct discovery find out those specifics then i can my complaint to set forth an appropriate damages claim if it has just been misplaced or if it has been intentionally transferred i thought those issues and i think we've got to thank you very much and thank you we will be in recess until nine am tomorrow morning