haven't since i'm not on the video would you mind seeing up and introducing the next case yeah of course so so can we get the lawyers in for the last case of the day on the pole versus world or anthony can we help and maybe you will not see judge jordan but he is there in a black box and you'll hear his disembarking voice from time to time all act certification and discovery tell me how it is the the standards everybody seems to assume that the standards here are competing standards but there are two different standards between which we must use i don't really think i understand that it circuit it appears and what has not been ruled on by the majority of circuits as we sit today but the rd circuit in the district court circuit requires that the plaintiff alleged official facts to create a factual dispute as to whether pictures true of course that would was a factual question as to whether or not the defendant in federal employees were operating within the scope of their employment he th circuit which has th competing standard you want to requires that the plaintiffs forecast specific evidence or have specific evidence demonstrating that the federal employees were not operating within the scope of their  that the the agent was going to certify the federal employees the nature of the communications in place between the federal defendant or he's in the nonfederal ways so the issue is that the requirement that the plaintiff be able to tell you exactly what evidence is going to exists put a very strict burden on the plate have to know what exists within the federal government's hands that can prove that  answer i'm sorry mr la pierre let me ask you this i understand what the federal employees were alleged to have done wrong with regard to the initial act specter the dealings with purple shell but what did they do wrong with regard to this almost three million dollars contract the nd time around aside from negotiating and contracting with an money flow is supposed to work if this contract were everything was ok and there were no improprieties who would pay purple shub certainly not the civilian employee it would be the department of  the funds were diverted by the defense in this case for their own use ok so that if so that the federal employees had no role in the money going from the fat to purple shelp right no your hon the contract was issued in the plaintiffs on the bill had been induced in the contract the faster care of that particular transfer in accordance with the issue contracts ok so your claim is that after the money was sent to purple shaba by the fast then the federal employee defendants and the other defendants then engaged in a scheme to divide those funds federal to according to your complaint they gave money to the federal employee defendants in the st instance you're going to they were kickbacks received by the federal employees and in the three million dollar transaction the h took a share of the three million dollars had sort of run through relatively quickly in my mind just wasn't quite tracking the categories of discovery that you wanted and i guess i might have missed misread the record but i thought that i had read it that in the request for struthers preexisting relationship were in black so how is it is specially i guess on an abuse of this question standard that we would conclude that any of those go to the guts of the  question whether the you know that the employees were acting within or without the scope of their employment not at this time the issue of whether or not the czech republic had been blacklisted is that goes to  seeking other contracts and so if their participate that extent in the fraud obvious that they are clearly operating outside the scope of your employment relationship with the federal government the nd issue on a related to how the a address the issues at hand and then be scope of the relationship between the federal employees and the non current what he defends will address specifically the participation and i apologize i am out of time w outside of their employment that would have supported those particular allegations  out christopher warrell because the complaint also mentions a benjamin warrell who actually is an owner of purple shovel my client christopher warhol is not an owner of purple shovel never was was assigned there is an employee and we look at this is a textbook case of why we have the heightened pleading standards of nine b in our brief cites the policies as articulated by this very court about why that is but this is essentially and i choose these words carefully and i don't use them lightly but this is a strike suit designed to intimidate three government contracting officers an employee of purple shovel two owners a purple shovel and you also have these three divorced from common sense and right we have a plausibility standard and when you really look at what this meant a complaint is alleging it's completely off the reservation i mean it's alleging all these individuals participated in what is frankly a completely implausible and fanciful defraud the plaintiffs appellants out of you know the exact amount of money that they've claimed against purple shovel in a bankruptcy proof of claim centrally this isn't it they got burned by purple shovel and they're attempting to hold all these other individuals liable and extract settlements out of them and you say that it's implausible but you may be right that the complaint fails to satisfy rule nine h s huygens pleading requirements but it's not it's not inconceivable as a matter of common sense that employees of one company steal or divert money that's supposed to go to a sub contractor that's not great it can happen and i'm sure it has happened in the absolutely and the court noted or i'm sorry as the appellant noted i want to correct something that the appellant said you know point out this is summary judgment obviously we're here on a motion to dismiss  the standard is of abuse of discretion and as the district court noted in page fifty six dollars of its order the as far as the money and where the money went and who knew where the money went that didn't even meet the standard of relates so even if one dollar throws out nine be fraud and all that there haven't even been sufficient allegations about that and notably the appellant's aren't even asking to be able to file to have leave to file an amended complaint to clarify these things they haven't asked that once in this brief they're seeking to just let this complaint pass muster on its own and proceed with discovery and the authorities from this court warning what happens when you when you allow that are swell up well that's there's a lot i have to say about this your honor but not in the wrap up time but i have all just rest on our briefs and you know we do believe this is a strike suit and we stand by the district court's well reasoned and lengthy opinion explaining why this is not meeting the pleading standards complaint does not satisfy rule nine's core purpose which is to give mr breckon notice of precisely what he did if anything to injure appellant here and to that end i just want to point out a few important distinctions that are applicable to mr breck his situation is unique because there is not one allegation specific to him except except for the jurisdictional alegate allegation reciting that he was an executive officer purple shovel there is no allegation that mr brecht made a statement written or otherwise let alone a misrepresentation so there's obviously no allegation that any plaintiff relied on any statement from mr brock on the contrary the only statements identified in the complaint are attributed to other actors that's  seen in paragraph fifty nine thousand three hundred and sixty one dollars where the plaintiff lay out the alleged fraudulent representations presented by the quote association none of which are attributed to mr breckon his situation is also unique because unlike other co defendants and non parties there is no allegation that mr breckon new federal the federal defendants prior to engaging in any legit scheme and finally contrary to a point in a palace briefing there is no allegation that mr brett founded or is a founding member of purple shovel there is an allegation that nonparty benjamin worl is alleged to be the principal and managing member of that entity correct is alleged to be an officer the appellant's appear to rely on two suppose of exceptions to the rule nine particularities standard that is that they only need to allege some information for some claims and the other one being that they can relax the standard if the defendants control the facts necessary to sta neither of those exceptions applies to mr brecht specifically because they have no information for any claims against mr brock and nd there are no allegations that mr brock somehow has control of anything that the appellant's need to state a claim in short think your honor benjamin schultz on behalf of the federal defendants amy strother brian sydell kirk bristol and the united states district court in this case correctly dismissed the complaint for two reasons st as to the state law claims against the individual federal employees the district court recognized that there was a valid west certification and that the plaintiffs had introduced no evidence to overturn that certification to the extent that the plaintiffs contended that they were entitled to discovery and attempt to produce evidence that would overturn that certification the district court st of all recognized correctly that the allegations in the complaint themselves did not establish conduct outside the scope of employment and that in any event even if the allegations did suggest conduct outside the scope of employment the plan just did not give any specific articulations of the kind of discovery that they would like and to just pick up a little bit on i  question and again for purposes of my question assume that there are no rule naing or twelve b six problems with the complaint if an allegation is that a federal employee diverted stole funds that were destined to another party how can that be would in the scope of federal employment sure so your honor i think what your honor is getting at is the theft claim specifically because i think that's of the state law claims the ones that is most about the diversion most of the other state law claims are not about the diversion but specifically about the diversion i think the reason why that one is still within the scope of employment is because it's not a theft in and of it's own but the allegations are that there was a broader scheme that included the saft and that scheme also included the federal employees doing things within the scope of their employment like approving the contract with purple shovel and since that contract was at least partially motivated by the federal employees intent to serve their employer as the complaint itself alleges these were quality arms and so they serve the government's defense interests looking at that broader scheme there was that with that there was that scope of employment but your honor even if you thought that you know it's an open get that doesn't get to those the alleged stealing and diversion of the money at the end because that cannot possibly has any purpose to benefit the employer if it's true well your honor again i think you have to look at what the specific claim is if the claim is just you know i think it's not a claim of just unadorned faffed it's a claim that there was this broader scheme and i think part of the reason why you can see it is that it's not the federal defendants themselves who are alleged to have taken the money out of purple shuttle and said there's some really vague allegation that somewhere along the way the money went from purple shovel to some unnamed coconspirators or and somehow you know it's through this vague conspiracy ended up in the hand or at least partially in the hands of the federal defendants so that's how you know that it's not an action of diversion alone but instead some sort of broader conspiracy or broader scheme and that scheme included the federal defendants approving the contracts with purple shot or allegedly approving the contracts of purple shuttle and so that's why you have actions within scope but your honor  discovery is because of the procedures that that they chose to follow so the way this works is once the government files its certification that certification under the westfall act is prima fashion evidence that it has legal effect the united states as a matter of law is substituted as the defendant now it is true that the plaintiffs are entitled to overturn that certification but to do so under the supreme court precedent what they have to do is they don't just have to give allegations that the certification is wrong that doesn't overturn it they have to provide evidence now if they want to say hey we don't have that evidence yet but we think we can get that evidence and discovery then just like any other litigant to file a rule five thousand and sixty motion or you know otherwise provide specific indications of discovery they want to get they are free to articulate that and then we would be up here on abuse of discretion for whether or not the district court's denial of that discovery was an abuse of discretion but i think it's really telling that never once did they say hey we want to take discovery about this diversion portion of it and instead the things that they listed that they wanted to take discovery on were other aspects of the case and so at that point you have a certification that has legal effect you have no request for discovery about the diversion portion let alone a specific request for discovery of the diversion portion so that is your court did not abuse its discretion in denying discovery and that sort of occasion has a legal effect continues in the united states defendant thank you so i'd be happy to address anything more on the scope of employment on the west fox sort of occasion if there are questions i do want to just briefly comment on just knew some we agree with you that we don't think that there really is a don't think that those cases actually hold that and indeed if they did hold that it would be very odd holding because it would mean that it's easier to get discovery in a westfall act case then it would be in a typical summary judgment case so at a happy to answer any questions about the individual state law claims and why they feel the meat nine be pleading standers as well as the civil rico claims but if the court has no further questions on that then we would rest what they are harmed by as i read your complaint is the alleged diversion of the money at the backend and as to that their version how does the complaint satisfy rule not an issue  purple shovel was paid and then the money was diverted and not given to omni poll and to al mix correct john and i may not be understand your question he the issue that we've a intended for our nickel knowing that they were going to divert those funds away from our new poll into their own personal heaps right no i and that so my question is after the diversion how does the complaint cut there's no allegation and this complaint as i understand it that your clients word title to the money from the government and the purpose of trouble was and well no your honor they were not direct under florida law any fraud in the inducement claim here spelled out in the complaint in which you seek no rescission but you stand on the bar submit this case and will be in recess until tomorrow morning at nine a