that arise out of a hidden corrosion defect in a first generation yamaha high horsepower outboard motor and the district court below committed reversible error when considering the complain understand shortly after the jurisdictional arguments in the days in the dirt in general jurisdiction terms damer of course had nothing to do with california factually there was no pla y m c right set up yamaha motors usa going to another wrong with that correct subsidiary and and operate its marine division through the vision or is it a subsidiary they operate the divisions of the business enterprise through subsidiary corp ok is it a is it an alter ego of the parent there are no alter ego allegations in the complaint because states and enjoy the fruits of its forty two percent of the marine sales in north america it directs they subsidiaries marketing advertising even arguable really that yamaha usa is the agent of yamamoto corporation for the purpose of selling how more motors in california and across the united states that i get would hold true for any independent distributor for for the purposes of specific not any independent not on my general jurisdiction is there a general jurisdiction in the general jurisdiction question was made very difficult in this case by that so there is none  the responsibility of yamaha motor corp in japan and yamaha motors usa those young have motor company in japan there's no there's no long arm jurisdiction because the tort was committed i had to be a tag along with or a label or something and the tort was measured by the absence of information on the label such a theory the label you mean the motor has yamaha motor corp's stamp on it if any if that were something else than we're there has to be a communication of fraud is it the separation in a communication this message for me to you that's the fraud right so where is yamaha motor company when he committed the fraud it was acting through yamaha motor usa so your case is on agency then  i think the agency theory survives ok i understand it my question listen carefully my question is if the agency theory doesn't survive daimler you lose right there is a  yamaha motor corporation has never visited the united states for all for jurisdictional purposes and we were not allowed to take any jurisdictional discovery to task but i think his question was one of these are the thumbs up or thumbs down so answer his question is believing to the exclusion of the plaintiff's allegations the defendant's construction of the facts as the court said is it just courts it was improper in the editor for versus fresh in any case she applied a probability test and not applause ability test and the second thing she did was a case that has been effectively overruled by the p he government services decision of this court she refused to accept example we said that as our earliest two two thousand yamaha motors usa was developing a repair kit for that hidden corrosion problem in this outboard motor let's assume for a moment that i agree with you about the prius that's only we're only dealing with yamaha usa right i don't that's not the complete of it the parents out of it if there's no jurisdiction right that's what that's what we have decided yes excellent ok perfectly well what was going on because if you believe what yamaha motor corp's position is yamaha japan's position is they don't know what's going on in america unless the subsidiary tells them so what happened was they roll this first generation and by first generation we mean it's basically i groundbreaking new product has an internal force for motor name from charter boats and heavy users that hey something's going on with this engine yamaha usa went to yamaha and advised on motor corp of this fact because we know that's true because yamaha motor corporation sent personnel to fort pierce florida and later to bridgeport alabama its own people for the purpose of testing this repair kit and the only way they would know to do that the only way they would be compelled to do that is if they knew something was going on with this motor and they specifically knew it was a corrosion because yamaha usa set up and kennesaw georgia a lot of defense they set up a customer service center there that was designed had twenty four employees and it was designed to field questions about this corrosion problem by the way the requirements of nine be you proving your lodging fraud and deception you need to allege the particulars time and place where in the complaint is that i could find and omissions case it's the materiality please the court the end i have angeles on behalf of yamaha this case is about decade old outboard motors that indisputably performed throughout their three to five year warranty is and for many years after in some cases more than a decade plaintiffs brought this case because they want to pay for repairs that they allege that they had to make after wear and tear cause issues with their motors and as that this court held in wilson versus h p the plaintiffs can't use consumer protection laws to get around the limited warranty here and h at wilson versus h p controls exactly in this case and there this court held that the duty to disclose applies only to defects that are known pre sale to cause an on reasonable safety risk ok so we talked about   the you know what they've alleged in terms of the kits and all of those sorts of things at least with respect to the subsidiary it certainly seems like the akali you know how  us was aware that there was a problem and at least allegedly started to do something about it mainly blamed the customers or all gave them a sense true isn't that sufficient to satisfy the presale aspect of this present knowledge no your honor and i'll explain why they haven't alleged the facts to support that what they have alleged is that here that the corrosion set in five to seven years after normal use so their whole theory was based on the fact that they didn't know that there was corrosion that's why they didn't bring their claim sooner that's why they were outside the warranty period so they have a eged that repeatedly throughout this case then they have alleged certain things that they claim show knowledge but equate as a consequence of safety consequence happens with the corrosion they have pledged t ledge of the argue that there was knowledge because of all the servicing activities that occurred in the southeast well your honor that those allegations don't show knowledge of a safety hazard which is what this court health in wilson and that was at page eleven forty six the court said there h p did not have pre sale knowledge of a safety issue and here there is there's no evidence of that what they  cited is a replacement kit but replacement kits in the first place aren't evidence of knowledge of a defect we manufacture is often provided replacement parts and kits make them available for their products and here they are alleging that the products lasted the the motors lasted way beyond the warranty period and is it your position that if he again are you and if i'm a design a motor that had inherent problems it was only a question of when it was going to be defective is it your position that as long as the the fact is not discovered during the warranty period that's it well your honor this court held in wilson versus h p and also in clemens that products are not guaranteed to last forever and that every manufacturer who makes a product can be said to know that at some point the product well that's a very different case i golf with a lawyer who litigated that for h p and it's a very different case in this situation you're talking about something we're going to come out and exhaust system that presumably there could be a fire or something like that it's quite different from the level of incan and h p container so that makes those up here do you agree that the allegation that the design was such that all as exhaust was coming around inside the engine causing corrosion and that the very fact that it was designed that way could lead to a fire or an explosion or something like that your hon alleged that but the motors have been on the market for seventeen years and they haven't pointed to a single instance of flames they claimed a few instances of smoke yes it is your honor here because smoke is not fire they claim that there is a risk of fire but that's it and in wilson your honor there were allegations of flames coming out of the computer because of the power source there so it actually is quite similar and here plaintiffs have this theory all along about forty five of the second in their amendment complaint so that if you lose pala you lose steering if you lose steering you lose control if you lose control you're at the mercy of well kinds of issues that affect safety honor they have an asian they do that's entirely speculative it's like the allegations that this court rejected in birdsong versus apple but more importantly they've never alleged any instance of that but if that were the case then any time a motor the law but but if that were the case then anytime a motor fails because a certain component part has worn out because of wear and tear it would be actionable and in dorothy vs as it goes to reason what you're saying means that you'll win the case eventually but doesn't mean that we should bar the courthouse door to people who want to complain actually it does your honor under it and under a collective properties this court's decision there plausibility it is not plausible saying by saying that you losing control safety features and it happens too early in the life of an engine which has a certain useful life and people why not expectation seems to me that we are again confusing the issue of who with loss of engine power so that's a separate issue but here that the court does have to evaluate the plausibility of these allegations and that is not a reasonable inference but i'll move on from the from the safety issue and i  really i don't believe that the plaintiffs have alleged enough here because it would be the case that every motor could never fail and already versus american honda we had there were automobile engines there and there was an oil seal th failed in caused leaks after the warranty period and it led to the entire loss of an engine engine failure completely and there that wasn't enough to state a claim in that that's very similar to this case but going back to sell knowledge there's no evidence that yamaha had pre sale knowledge of this safety issue they plaintiffs have alleged the replacement kit which is not enough simply to say that there are replacement parts of it made available plaintiffs claim that yamaha marketed that that's the opposite of concealment so that doesn't work they also claimed it originally several times that it came out in two thousand and six no plaintiff in this case alleges seeing it till two thousand and thirteen all of that matters under this court's decision in wilson versus h p plaintiffs came back in their latest pleading after judge o'connell considered all of this and said none of it shows pre sale knowledge they came back and said that this there isn't here because the only other allegations are this replacement kit which i submit your honor doesn't get them there there are allegations of consumer complaints but the only specific complaint that's alleged here is from two thousand five and that was on a website and as this court held in wilson versus h p consumer complaints don't show knowledge they show that people were complaining and none of the allegations talk about complaints of safety submit that they don't even satisfy the iqbal standard there are generic generalized complaints we know that's not enough they also claim that that yamaha the japanese manufacturer came out with a new  knew even on information and belief for them not for the raps but as a loyal tows your honor i agree with you they haven't alleged that in plaintiff mentioned something about an investigator and charter fishing boats there were some things that he said those are not in the complaint and we have to go with what's in the complaint so with all due respect that's not here before us and consistent with rule eleven plaintiffs had five opportunities to plead their case they never mentioned any of that so here  there's there is no that the mere development of a new model is not enough because first of all that's the japanese manufacturer which is not in the case and also simply coming out with a new and improved product is not enough to show that you knew about a safety hazard which again your honor i'll bring the court back to that because plaintiffs have always acknowledged that they had to show that and here there's no evidence that any of those complaints or even the replacement kit or anything is evidence of of knowledge of a safety problem so you know these motors have been on the market for seventeen years without any safety  all of these allegations are speculative what they're challenging is the timing the timing of corrosion they're saying that we didn't expect the corrosion to happen so quickly even though it was in some cases ten years l govern product in my house it goes wrong just after the war two period your honor and the second circuit and abraham versus vocal ag and made that point as well and that there's that we have limited warranties for a reason and the consumer has yes your honor the the complaint they don't have a specific complaint this is these are all very general allegations about complaints and they're not about safety issues and so again the fact that you know and so i would just bring the court back to the fact that what they're complaining about is the timing here so the fact that the corrosion was they admit and inevitable consequence of motors being in the water what they are complaining about is the fact that it happened too soon that can transform it into a safety issue so that's really what this case is all about and the fact that these motors lasted by kim it it they don't last for more than i know a decade or whatever we think would be better than three to five years in this case and that can't be the law it isn't the law and this court has made that clear and clemens and wilson versus h p and the second circuit decision abraham this is a you want a clear statement that the manufacturer of the distributed knew that the motors of the engine should last a certain period of time that they she would stand corrosion for a certain period of time and here they had evidence that it wouldn't do that and so they kept silent and they violated their obligation to make fair disclosure i'm looking for something like that on the phone you know your honor and there's no allegation of any affirmative statement that was misleading or fraudulent but now that you can really answer intelligence that's exactly right thank you and i believe i'm over my florentine but thank you we took you there so they think you ok our counsel i have a little time for feedback which is egg consequence of rolling the product out on the market in the first place we alleged that they knew about their yamaha usa knew about this  even if that's true worst the safety concern here you know i asked some questions about that a few minutes ago but the reality is you have no record of anybody being harmed by losing control or a fire or anything like not unsafe unless it's killed someone you don't need to wait until somebody is injured man or killed by a product before you decide that it's i'd say in fact the safety issue is all about making sure that doesn't happen  for the proposition to be expressed that the pinus have not come forward with any indication that these engines posed a safety risk i would point to fact that one point its engine smoked out and began to another one continuously overheated two different players were stranded at sea and i think we know about them all right we think we have your point we thank you for the rebuttal thanks for the argument