right our fourth case for this morning in kline and sighed jack is against o'brien and lots of other people misters i may please the court judge would judge easterbrook judge better i'm only subject matter jurisdiction should have been briefed and it really should be the only issue that's on appeal even the district court which said that we're only going to brief the jurisdiction has to address the grounds on which the district court actually decided the case do you have anything to say about those grounds your honor the problem i have is that if in fact the court disagrees with me and goes into the merits of the issues then i waved them i don't think the court can do that i don't think the district court should have that's what the district court did you know you may say should but he did this was district court was doing something rather different from that that of course is right there's no hypothetical jurisdiction steel companies so holds but i think the district court thought that there was enough of this case that was willing to take state court judgments as a given that then now one moves on that's not broke or feldman brooker feldman as the court explained in saudi basic industries requires an attack on the state court judgement somehow and i'm not saying that that's the whole case but there was enough of the case to just require thought that fell outside the boundaries of record feldman but he thought it wise to go on and look at the merits which he did and found as judge easterbrook has sa claim but your honor it's rather unfair to say we're going to brief only the subject matter jurisdiction and your preferred goes on in our group or feldman did not apply ricker feldman does not bar feldman so you don't think that you agree with the district court judge you think that indeed most of this case is not covered by rockefeller so that i guess that's why i was mystified about the strategy of the brief because it looked to me like you won in the district court and then wanted to come up that discuss croaker feldman and that ended up saying broker feldman doesn't apply which is the position you're taking the feldman a mike wreck you don't think it applies right so if this court  did apply it's a question of subject matter jurisdiction and we would be obliged to reach that but surely it's a matter of your own briefing telling us why you are presenting something that states a claim on which we could grant s wouldn't have been a bad idea but but your honor the problem is that if it if he's going to say it doesn't state a claim based on what if it's a release issue then those are issues that are evidentiary they're not at the pleading stage especially here we don't even have a say district court should have just missed because you know whatever there's enough to go forward i believe i did said in the alternative your honor in both of the briefings stating that in fact if there was jurisdiction then rescued a cat or released doesn't apply and those issues weren't ones that should have been decided at this stage of the proceedings especially when the district court itself said we're only going to decide subject matter jurisdiction first so i'm not clear why i could be put in that sort of box with the defendants agree with that and then when the dismissal order comes out that says well we've gone to a twelve b six motion to dismiss and by the way i've looked at all of these other opinions and cases and i decided by taking to dish will notice that it should be dismissed on those grounds those were issues that we should have had an opportunity to brief and we were not allowed to do since you know that sounds to me and i don't mean frivolous about this but it sounds to me like an argument that you haven't had enough time yet to defend your position in this case and this case if it suffers from anything it's too much of a process it's not not enough it's your honor if you know usually the victors are the ones that write history and unfortunately with someone the opinion which are only part of the case i mean you will not see an opinion where the district court of colorado state the case for something like ten years of course because that doesn't want to be stated you won't see opinions where the district court in colorado said cristina's a bunk is damages are not part of this case because that didn't make it into an opinion so of course the opinions are written to support the position that they have this case was probably stayed for most of the time that it was proceeding and there was nothing i don't think wrong with that and i mean really it was filed in two thousand and two i think the dismissal lot of colorado for lack of subject matter jurisdiction was twenty fourteen i mean one has to wonder what's going on there for twelve years that all of a sudden there's a subject matter  you can't say this person had his day in court down there because in fact if you look at the docket most of the time it was stayed down there and then it was dismissed for electoral issue before judge mine and weber really was much more narrow than this law and unfortunate history of this litigation there was a probate proceeding in the appropriate court in cook county there was an appointed administrator for reasons that i don't understand your client didn't want to participate in the distribution phase of that so he didn't so the court resolved the case it just seems it's very hard for me to get my head around what role the federal court has in any of this but your honor the problem is that  case for some share of the proceeds and mr kind just didn't do it but your honor his interests need to be protected even before that request because he's not in privity of course with the administrator and the courts have said that he wants of people who are administrator well the administrator also has a conflict at this point too because the administrator also has her own personal injury can imagine it's not at all uncommon probate proceedings that the person who supplied  executor ministre her is also somebody with an interest in the state that's why the judge has a hearing that's why there's judicial supervision much like class actions or other things i would agree with you but there are a beneficiary this isn't just i'm a beneficiary of the wrongful death that this is also i have my own personal injury claims outside the wrongful death that so then what happens is you shovel all of the money to your own personal injury claims so they don't have to be divvied up amongst the beneficiaries and that's exactly what happened here and why is it now that we are bar from going after the administrators attorney at least in the defendants to say what you did was you basically funneled all of the money in this case to one person and didn't give it to the other and those claims are simply mel practice the interference claims here it's a nine hundred eighty three claim we can state a claim on the merits to show that who represented mr kind interests over there nobody seems to say over who represent interests if the attorney in the administration have a fiduciary duty to him and it's not just by the way we settled your claims come on in now it was to let him know that they were planning to do it and the problem you have also your honor is he's entitle also to prove up his damages because what the beneficiaries want to do is make the pot his biggest possible so all the beneficiaries get to participate not only in distribution but also in putting on their damages for settlement ok you're using up all of your please the court despite the convoluted fifteen year history of the litigation that led to this appeal the issue before this court is simple we believe that the district court was correct in dismissing mr klein suit whether that your clients made a motion in the district court to dismiss for life but that's not what the judge did why aren't the parties addressing what the judge did your honor i do believe that judge leonard weber's ruling contains elements of the river feldman argument that we made if you look for instance at page twenty one of the opinion and the court said the answer to client's effort to rescue this case lies with the state courts on an airplane the judge that has nothing to do with her or honor it has to do with a very old principle that you when you believe a drug that was obtained by fraud or rather misconduct you follow motion in the rendering court right it's a believe that if the court were to analyze that under of rule twelve the sixth analysis based on failure to state a claim we still believe that the dismissal of the case was correct and we don't believe that there are any facts alleged in the first minute complaint and which kline could state a cause of action either for violation of due process or for a violation of the equal protection rights we believe as judge line and whatever held that mr kline received more than adequate procedural safeguards in the segment of the case when he was promoted and was invited participate but refused for reasons not only perhaps his counsel he also had the opportunity to bring appeals from the court's rulings and  that he has was in the state court and he did pursue those remedies to some extent and his remedies were never meant to be in front of judge line and whatever or the course of the united states the court has any specific questions regarding the procedural history of the case or any of the specifics i take it our jurisdiction as far as we're concerned is based on one nine hundred eighty three on some theory of conspiracy misters i degas being a plaintiff as well i think would would potentially complicate that analysis i don't know his citizenship your answer again which might state to mr kline i understand as a foreign national jurisdictional issue was the only thing that should be decided and should have been decided and that's what the district court told us and i don't know how all of a sudden it they can change it and say well it's a decision on the merits we were never allowed to brief decision on the merits instead they specifically told us keep it to the jurisdictional issues now what should have happened he should have said perhaps we have jurisdiction let's go to the twelve the six motions and you know we were never allowed that we're kind of put in some sort of catch twenty two where we said keep the briefing at this and then at the end supposedly there is a difference of opinion and as your honor no if you're not allowed to do that you're not to say well i'm assuming i have jurisdiction but i'm going to the may twelfth the sixth even though the parties