good morning and may it please the court my name is todd curry and i represent the appellant james ross i would like to if i may reserve two minutes for sure i'd like to start by addressing the sta limitation and the relation back doctrine there's important policies at stake here with respect to the statute of limitations that applies here the statute here is under federal rule of bankruptcy procedure four thousand seven c and it's a very very short statute it requires a plaintive to sue a defendant in bankruptcy within sixty days of the creditors meeting that creditors meeting usually occurs within just a few weeks of the bankruptcy filing so the statute  about ninety days from the bankruptcy filing those important policies that underlie that statute which are that i gather is the title and the creditors who is frankly are entitled to have the debtors financial affairs resolved quickly so this is a good and it is a fresh start are also bound up with that but the important point is to resolve the financial affairs quickly and in chapter eleven which is what this case mr ross case was a chapter eleven case there's an added policy which is to have the debtor propose and confirm a plan of reorganization to address his or her or its creditors claims promptly now if you have a non dischargeable claims lurking about which have not been asserted the problem you have is the debtor in chapter eleven kiya really effectively proposing confirm a plan because there may be these claims that survive the bankruptcy so it benefits creditors as well to stick with the statue of limitations and enforce the very strict and short stature limitations under rule four thousand and seven same now one thing i want to point out is that the apple e incorrectly states in her initial brief at page twenty two that she attached to her original bankruptcy complaint a copy of the state court jury verdict that's that's absolutely incorrect the record on this is a palin's excerpts of pages one through sixteen that's the original judgment that's important the differ the distinction here between the judgment and the jury verdict your honor is very very important the judgment itself doesn't have any facts it just talks about the amount of money involved it doesn't dig into the facts on what the bases were was for the judgment the jury verdict does do that the jury verdict is detail that questions to the jury the jury answers those questions and there's there's a lot more in that jury verdict the judgment itself has virtually nothing and that's important because the complaint itself the original complaint itself has and in fact the judgment is no judgment is for a broader d ca cation within that act with well acting in a free do sherry capacity and in fact the judgment is not based judgement results from willful and malicious injury she didn't cheat didn't you know lay out all the facts but she sure tips off what she's complaining about she she refers back to that state court judgement your honor with respect to three areas she talks about the section five twenty three eight two claims which are fraud then she talks about the eighty four claims fraud he fell cation when she talks about the eighty six a willful and malicious injury claims the important point here is is that her original complaint was based soley on the judgment that judgment did not have any fraud based claims underline it which we can see if we do go behind the judgment itself which i submit we cannot but if we do go behind the judgment to the jury verdict we note that there are no  claims whatsoever so at a minimum with respect to you five twenty three eight to flog bankruptcy fraud claim where she says my complaint here is based entirely on the judgment you have of that judgment and no way dealt with any fraud issues at a minimum or fraud cause of action the bankruptcy court cannot relate back to her original complaint one can argue about the other the other claims but that fraud based claim the two point eight million dollars  point nine or three million dollars judgment absolutely is not encompassed by the state court judgment which again is what she entirely based her report was it was the core of the superior court complaint on which she prepared the core promise without intent to reform claim so the complaint there did have that but the key point here is it was dismissed before the trial concluded in the state court so as a result we know for a fact that the state court judgment could not have  now she has counsel yes she has counsel fairly detailed a complaint in the adversary proceeding yes and that complaint was filed in march of two thousand and eleven which is a full seven months statue of limitations but it's not meant to swallow up the rule itself and her first claim for relief in the amended complaint is for those under eleven twenty eleven u s c five twenty three eight to  twelve pretenses false representation an actual from and that is the time barred section five twenty three a two a fraud claim which cannot relate back to the original complaint because the original complaint was based only on the judgement and again we know the judgement is not based on any fraud case facts because that's a perfectly fine reading of the relation back down then i'm not sure i understand your own well the relation back doctrine is pretty is pretty generous well it upon a lie upon the same type of evidence facts similar in type and time and in this case we know that the state court judgement did not have anything to do with justifiable alliance which is a broad base fact it doesn't have anything to do with a fraudulent intent which are key points of the fraud claim so the the amended fraud claim deals with facts that are not in any way implicated by the original complaint and in the bankruptcy court that i think is  perhaps one of the well actually the most important point in the appeal is that the amended complaint deals with new facts that were not anywhere dealt with in the state court and particularly the elements of a fraud claim are not the same as the elements that were simply requires a contract breach causation and damages whereas a fraud claim the later asserted broadly requires justifiable alliance fraudulent intent fraudulent misrepresentations which are entirely different evidence as well as a totally different time of contract occurs much later in time whereas the fraudulent misrepresentations occur at the very outset of the case when promises are made before the contract is even performed so we have facts a very different time and time involved in the first of many complaints compared to ok thank you suggest otherwise but there was a verdict upon don't know where that was coming from with respect to the statue of limitations the issue here the rules of satisfy the sixty day limitation that the rule that mr curry cites to the fourth four thousand and four it really is not that is not a statutes of limitations further as we pointed out in our grief mr curry did not he did not move to dismiss this went all the way to trial there were pretrial orders or there was a trial order on this so we've we've set this forth in the previous at this that this matter is is critically wait your opinion now as to them as to the substance of his claims that there were somehow some new matters that came up what we have here is we have made a hypertechnical reading of of the pleading standards which i believe is not this is not consistent with the case of this so he wouldn't just say on the merits though is that the superior court judgment was not based on conduct that is tortious when that comes to the bankruptcy court the bankruptcy court can make a determination whether that is is that contract breach  they work together what twenty years i think it was this from one thousand nine hundred eighty two two thousand and seven so almost thirty years twenty five years or so and they were real romantically improperly which i believe the bankruptcy court erred because it could not once it found that those planes were not destructible it could not simply carve off or jettison the statement finding this a fact lucian's law but she said that she would not plant him and the right to attorney's fees is under travelers under the travelers case site so we we should not that was an ok thank you thank to be clear the fraud claim relates to the thirteen thousand dollar loan that ms paket has made for which in return for which she claims she's entitled to a two point eight million dollars judgment for fraud a couple of points the hernandez case which we cited in our paper says that just because a defendant may have knowledge from some other source of what the claims may be about that is not sufficient the complaint itself needs to be the source of the facts that's the first point the second point is how do the courts actually apply this relation back of the williams versus boeing case the ninth circuit case that you cited in our papers that case involved racial discrimination in compensation which was the plaintiff tried to add that later when the plaintiff already had a racial discrimination in promotion claims and what the court said was despite the fact that it's the same job it's all discrimination same employment relationship the one does not relate back to the other so we have to be careful not to interpret transaction or occurrence too broadly so as to swallow up  thing in glover versus f d i c the first claim was a debt collection based on phone calls to the defense to the plaintiff amended complaint try to add in the creditors proceeding they had with foreclosure despite the fact that a modification agreement had been entered were talking about the same debt the same parties same transaction the same loan transaction and yet the court in that case said no relation back similarly in the hernandez case another employment discrimination case a hostile work environment was  claim of discrimination based on a hostile work environment was the one claim the second claim was retaliation claim same employment relationship all stemming from discrimination an assertion of this from a nation claims and yet that was not enough for the nation claims those punitive damages applied to and the problem is that some of those claims the bankruptcy judge determined were dischargeable so the challenge then in the bankruptcy trial was to say ok we don't know what the jury