represent vantage mobility we will request now two minutes for rebuttal with respect to the argument today there are many issues well briefed before you we ask this court to reverse and remand for further herring's and discovery in keeping with the orders we believe you will enter here st we propose to address the errors in the analysis of specific jurisdiction as to defendant braun and in this will cause to discuss the failures of process and a fair opportunity to be heard arising from the wholesale denial of any  discovery nd we address a clear air of law that drives the many failures in the legal analysis of clay ins ending in the improper dismissal of claims and the failure to acknowledge balance or claim  we conclude that by urging the court to grant the injunction as the trial court applied the wrong standards but is turned then to specific jurisdiction st and foremost the focus here is not on the acquisition agreement and the purchase agreement the m p a as it's called this is focused on the honor there well you'll find that only thing i found just let me give us background the only thing i found is that you had an argument concerning college sourced versus academy one and the district court said it was a pretty dam were standard and the district court as far as i know did not address the exceptional case which must be addressed to get specific jurisdiction you're and there are more to the point i didn't find it ok and more to the point judge smith the fact is the judge addressed it so the judge either addressed it sue a sponsor a and was wrong or the general jurisdiction but in his order responding to our motion for reconsideration there's a specific section on specific jurisdiction and on reflection i think you'll find he got it wrong how did he get it wrong  first of all he's talking about the n p a and washington he's failing to realize what you just mentioned on the tourist case which is the court's responsibility to look at the marketplace as a whole here we're talking about two industry competitors where braun is the monopolist and b m i is a significant entrenched and operator in that question but the dealerships involved here are not in arizona they're in the state of washington is that correct no we disagree judge cliff the dealerships that are affected are in washington isn't that correct no i there you're not trying to and you're trying not to answer the question this simple question i'm posing are the dealerships affected here located in the state of washington the dealerships some were acquired were located in where's the plaintiff located and i don't think that it was specific jurisdictions about no i i would agree with you on that i don't think that's what it's about but the issue is where are the contracts the contracts are spread throughout the country with a dealership network involving b m i and if we don't have your standard every state where there is a dealership part of this network well that states got jurisdictions visiting jurisdiction over this because somehow they're in well now you know rather that that is not i that is not right that is not right you're correct but that's not all you have here st of all we came on pleadings alone remember we were not allowed any discovery we came on meetings alone and you didn't get it areas you didn't ask for discovery that pertains to this issue but well and did not tell the district court that this premature discovery you were seeking was necessary for this issue but acquire a dealership and washington where they already have large dealership networks in washington it wasn't about that it was about something else secondly the nd standard is the claim must be one that arises out of were related to the defendant's firm related activities now in this as i read all of the jurisdictional cases we've been looking at both general and specific there is not one that says the court should ignore the facts that are developed with respect to general jurisdiction in this analysis the conduct we're talking about indeed arises out of braun's activities within the state of arizona where it has its western regional distribution center it has eight different dealerships operating within arizona it is licensed in arizona it has service of process in arizona and it in fact meets in this case the calder test right back to your phrase arising out of yeah i hear you that ron has activities in the state of arizona but i don't hear you if you had any internal emails from braun and you have none or any internal emails firm i'm kersey and you have none where christians members and you have none or arch and it's members and you have none that you would be able to demonstrate that there was a tactic involved here which was intended to have consequences against a major competitor not merely the acquisition of a dealership in wash put to you a few minutes ago which tries to turn this into an effect that is because plaintiff is located in arizona that's enough to give arizona jurisdiction over mine and i have to tell you i see no complete the nytol of any discovery ok and no ability to amend the post decision and no ability to conduct discovery on jurisdiction is beyond the pale prejudicial here  there is a policy by this trial judge that he does not like to have any discovery prior to a preliminary injunction that was said to us that shows up in this order now that you will appreciate turns polyphony injunction into a t r o because now we show up with no discovery whatsoever when a secret deal has occurred when a transaction occurred we got the sale documents in part not in in  their entirety three days before the hearing that was part of a disclosure obligation that it existed since july but wasn't in our view lived with but it wasn't discovery we had none so we do have cases around the country the rd circuit as addressed this with respect to injunctions and said and has done so in the raymer vs lannert ois case and it has said in that circumstance number  one the the decision at the injunction hearing is a can merely to a motion to dismiss here you have a summary judgment styled decisions getting made worse because it's just akin to a motion to dismiss then all facts pled must be taken as true by the court that didn't happen here the court went beyond that then the lender toys case says regardless of whether and judge clifton this does go to the point you're making with me so is regardless of whether the parties asked for the discovery they're entitle to it before you would enter judgment on the jurisdiction will matter and that's what the rd circuit has found this court in other circumstances has also said that the discovery prior to a preliminary injunction hearing is appropriate it's the usual and to me it collapses examine just so we're i guess you're reading out that that that we're reviewing you challenge that separately and that you're reviewing for it we review that for abuse of discretion i mean you're not suggesting that but we would say this is the case in other words this is the case where an abuse of discretion occurs because we're not allowed to amend at all and we're not allowed to conduct any discovery and we were prohibited on that score pause go ahead take a look at paragraph at page eight which is the record at age twenty one which is the judge's order where he says this is just a simple sales agreement and he's trying to distinguish between the nissan case involving dealership agreements and consents which also cites to van ness case in the th circuit and also cites morning your honour's and thank you for your time today and jacobs for courtesy mobility and brawn back to judge clifton's question among the many excellent questions i'd like to follow up on what's arizona got to do with it well if we look at what the game judge who to work with basically nothing and i would really eighty eight they have nothing to do with arizona i mean sort of starts with stops right there i mean the west conduct aeration is purely and simply about a washington state competitive injury which is what the district court correctly discern was in play here and what they've selection clause which is true but all the conduct in the order they would have had judged her has nothing to do with arizona whatsoever so taking the arguments then in the order in which they flow first i guess they're not really pursuing general jurisdiction which i think is appropriate if there's general jurisdiction here than there's general jurisdiction over every large company in america in any state in which it does business and very catalogue of factors that they ran through you know we have a registered agent we have some employees we have some operations that was what led the court in dialer led justice ginsberg to write that exorbitant exercises of all purpose jurisdiction would scarcely permit out of state defendant to structure their primary conduct with a minimum as to where it will and will not be sort of called into court so there really is no general jurisdiction here and i think they wisely will pursue that so i won't belabor that point further specific jurisdiction which is admittedly a little more analytic analytically complex nonetheless boils down to a distinction where at if i understand counsel's argument correctly counsel sort of taking the opposite side of the case they correctly cite in their brief which is walled in versus your going and the teaching of all them versus fury of course is that the mere fact that the plaintiff is found in a jersey station doesn't suffice to establish that specific jurisdiction put another way and in more contemporary parlance it's not all about them the inquiry in specific jurisdiction is about us it's about our behavior in our conduct in our conduct toward a party as well and versus fiore says the conduct toward a forum and so they're saying that there's kind of directed toward a forum where arch is according membership interests of a washington all see was to cause harm in arizona is that not is that on a not enough to get you into jurisdiction i mean you do say it's only on on the conduct the your client conducted but if their intent was to cause harm in arizona and there is evidence to that effect with debbie uno if as far as the rule twelve piece of this i'd be talking about allegations of harm in arizona and as far as we'd be talking about a specific proof of harm an arizona i would say that judge nelson if you had allegations of harm to be caused in arizona that would be both a very different complaint and we get you closer to the line of specific jurisdiction i think a very good point i think unfortunately here from their standpoint at least their complaint talks as the colloquy was just with your honor's in the st five minutes about nationwide they talked about nationwide in the s b to extrapolate arizona from nationwide they don't say very good it sounds like you know and i don't know how much of this exists and i know we can't consider it because it's not in the record but if there were some evidence that had been discovered where there was actually an inten to cause harm in arizona yours your suggestion that might be enough to create jurisdiction here i agree that's not in the way i don't see it on the record right now but should they not be allowed to amend their complaint and make that allegation if in fact additional information is why well it abstractly your honor they should be allowed to amend their complaint timely to bring forth the allegations where discovery has shown  intent to cause harm in the market of arizona i believe that the deadline to seek to amend the pleadings has in fact expired but i mean answering the question the way judge nelson your honor framed it so absolutely if they found evidence were trying to cause harm in the state of arizona that would be something that is reasonable for rule fifteen to proceed from there well but they haven't had any discovery to find out haven't well judge clips and they have had discovery up to the time of the end of discovery so i think are just close are you talking more about harms of them from not having any discovery before the p i hearing are you talking about throughout discovery before we're dealing here with a motion to dismiss discovery may come later and are hi provide an opportunity but they're complaining that they didn't have the opportunity they should have had to get to those materials right but i understand just clifton absolutely so based on that i would say their failure to request jurisdictional discovery is key because they request just sort of general merits discovery and it's very common to requestors fictional discovery but they are for better and for worse the master of those things and so i think that there is this sort of reminds me a little bit of you know in a basketball game when you get a little bit of the guy goes flying backwards i mean judge t i wasn't asked to give them jurisdictional discovery before the motion to reconsider stage so it's not assignable as error to the district court they didn't get what they didn't ask for it's not his fault and nd of all they didn't specify i should if they had asked for ju no i understand i'm asking that a good question but i i mean it in the general theory here i think the general theory of it is if you can show that there is a reason to get jurisdictional discovery and it's nearly tailored and you can explain why you want it and what it does that would be the way to make that request that they did not make so if they had a properly framed want i think again that comes a lot closer to the line but i'm not seeing in this record and i'm not seeing even in my own understanding of it outside of court because you're going to your  district court was never asked to do i think there's no better illustration of that than if you look in the record it's a page that i think is the most important record as the are three hundred and twenty eight because the entire appeal is sort of an enormous emanation from this one page of briefing this one and a half pages of likelihood of success on the merit this is so again i think there's a little bit of blaming the district court here for things the district court was unfairly given an opportunity even to do for plaintiff i mean the showing at page three hundred and twenty eight dollars and the five or six lines before and after it is just simply insufficient even if everything on the page there is sort of taken seriously to show likelihood of success on the merits such that they should i prevailed on a preliminary injunction and before we get to a close to the end of the time i also am really struck by the fact that they went so far out of their way when seeking reconsideration in front of the court to avoid invoking rule fifty nine dollars if if this case is one where the appeal was timely brought that would amount to a rule that any motion for reconsideration no matter how denominated or incorrectly denominated is automatically a tolling motion and that is not consistent with the cases that they have cited to this court is not consistent with your on line in c or on line the court said a motion to reconsider may be made under rule fifty nine maybe and it said in the prior sentence the motion here did not state the particular rule under which it was file that's the context in which the on line said well you know they there we say we have consistently held that if a motion is served within the allotted time and it could have been brought under five thousand and ninety dollars it tolls the time for appeal although it did not express we invoke fifty nine we look and see ranch association versus california coastal zone we see again where we say no man play jury is not controlling so therefore i'm having a tough time why we wouldn't two and under fifty nine that i very much take your point your honor there are this is a case where it was affirmatively mr nominated and it was filed under the local rules time deadline which suggests it was not the twenty eight day time period of rule fifty nine but there are definitely cases where it can be reconstructed under different rules judge smith that's absolutely right so i will i will proceed to pace away from that argument looking at the key though if we're going to look at the merits if we're going to look at likelihood of success on the merit the location policy is simple and easy to parse and we can see that there was not a cessation of location here and so that provision on its face simply does not apply there's not a lot of complexity i think the action in the analysis to the extent there is any comes up with whether or not kersey a sense into the control policy so i'd like to direct a few remarks to that because that was i think properly subject of a little bit more analysis than some of these other points and when we look at that  there is a there's an issue which i am surprised you haven't hit it before and that is what is my standard or a view on this who marion jones well absolutely your honor and i was winding to that as we approach that issue but i'll take it in the order your honor poses i mean the question here is made it can if we don't give you credit for worry you're going if there's a reasonable argument to be made it seems to me that under a standard for luminary injunction there's no abuse and your honor that's exactly what i was trying to move before closing to the evidence about a sense of the control policy because if the courts applying the law right under the standards we cited to the court and the basic law preliminary injunction here in of contract laws dimple and straightforward then the question is whether there's a plausible view of the facts here and absolutely there is the question isn't whether it's always going to be true that you wouldn't succeed on the merits the question is whether judge tucci could fairly read this record to say there was not a likelihood of success on the merits and that standard is one the flows downhill in favor of our clients and the evidence on the control policy there's a reasonable view that percy didn't assent of the control policy can he argue the reverse he can argue the reverse he could point to a and say but i sent them an e mail which we would say there's a sound evidentiary basis grounded again judge smith in the standard you just pointed us back to and kirsty didn't see the control policy until arches lawyers presented it in the time of the sale it was buried in an email and they tout this meeting in washington state the meeting in washington state didn't provide the control policy there was a term policy that said there might someday be some new policy that's not a cent you're not going to find i blasted out   e mail in corba non contract as a method of mutual assent because it's not there because that's not mutual sent and at the end of the day as far as the place where one could reverse in a p i that would be if you have legal error and as far as this key point about the assent of the control policy the law we cite is on the budget so there's no question in this record that there's even a possibility of legal error by judge judy in success on the merits on this point we cited using is coco's which is you have to was sent to a change in the contract terms unpublished case which in turn cites illinois contract law so it's unrebutted in this record that there is not a legal error on this key point the facts are amenable of the interpretation that was found by the court you can't tortuously interfere with your own contract that was  holding of his honor in the case below there's no unfair competition with no arizona next year and so for reasons especially grounded in the way your honour's find a preliminary injunction the standard of review the fact that there's not a clear legal error here the fact that the facts were amenable of the interpretation the district court meant to it and again the discovery the discovery is generally within the sound discretion of the trial court and judge judy was right i mean when you look at this their complaint attaches the agreements the koran they allege is that you know they've got these agreements and then this dealer went behind their back and did something they didn't like that's all in the complaint that's basically all that's actionable here from their point of view at the end of the day we can talk about jurisdictional facts  that's the core allegation it's a basic contract issue that has been dressed up into in our review respectfully way too many filings just to she was right you didn't need to have full marriage discovery before concluding this that's clearly not an abuse of discretion under circuit law and westerners have further we assent first of all the judge dealt with it as a new contract whether that's right or wrong as a matter of law rests with you but if it's a new contract how you get a sense is different than tying it back to the dealership agreements and silence the judge mention silence was purchased by braun with an n d a they kept him quiet eight months passed until the actual closing what happened in the interim this court was not permitted to discover it and we did not have discovery on it either secondly actual allegations look at her graphs eighteen where we allege the intended effect of bronze conduct undertaken with actual knowledge were to cause damage to b m i in the state actual intended we also say with respect to her graphs fifty and fifty five dollars fifty seven cents it was coordinated in the latest instance of bronze unrelenting efforts over the years to choke out competition through coercion directed at dmanisi so it's not merely the dealership agreements that are mentioned lastly the order of discovery if you look at our request for expert but i discovery it goes to bronson involvement in the transactions we are prevented from discovering any of that we appreciate the time of the court and rest thank you thank you both for an excellent argument and the case is now submitted and that concludes the arguments for today