please the court my name is jason bok i'm here on behalf of the appellant in in this case the district court erred when it ruled that that missouri's education law practice doctrine applies to this case it simply does not education law practice doctrine does not apply when it's alleged that the school made specifically promised educational services that the education law practice doctrine applies where the court is asked to interpret or treeview the quality of an education not whether or not a specific service was was promised or not and that's exactly what is alleged here in this case our complaint alleges that saint louis university promised to provide a ph d advisor within a few weeks but did not for a year and a half promised my client to conduct an annual review and discuss and evaluate his progress but it did not promise to schedule a qualifying exam after a year in the program or for two semesters into the program and it waited until after his fourth year to schedule qualifying exam and finally st mercy promised to award my client a ph d in mechanical and aerospace engineering after completing a course of study which he completed by they did not issue the degree asking a court to enforce these promises does not required order to determine if the method of instruction was appropriate or required this court to oversee the day to day operations of the school which is exactly the point of the education malpractise doctrine and not relied on the promises that were made and in the handbook before him rolled in the program if one wanted to find the terms of the contract that you're referencing where would one look to find the terms of the contract you will look at and the the handbook that was in place in august of two thousand and twelve the handbook that mr sweden reviewed before he enrolled in the program so it's your contention that the statements in  contract or how does the handbook obtain the status of contract and so i'm told we do is we look at a number of cases and this circuit and across the country that ever have held that the policy is in and books that school publishes and circulates to i don't know that students a prospective students constitutes a contract or can be interpreted as a contract even the cases cited by the university in this case support the fact that missouri has recognized that these types of death handbooks constitute a contract and you can look at the ro other advertisements people form the basis of a contractual relationship but they just a court ruled in interpreting the complaint to read that mr sweetin did not review the handbook until he was in the program for over a year and that simply is not what the complaint says and that's not the case that is simply not not true and this is an example of one thing that is easily been remedied has the  given the opportunity to amend the complaint now we think that at the complaint is very clear that at no point in the complaint does it say the mr sweet and did not review the handbook until he was unrolled for a year and a half  he did review the handbook and he relied on the promises that were made in that handbook before you ever enrolled in the program and in addition the district court erred in dismissing the pays the web innovations case and the superior edge cases all support the notion that there can be fraud allegation when the allegation is that you were  that there were were misrepresentations made in order to induce you to sign a contract and we believe that that is the case here we don't believe the st louis university had a ph d program in mechanical aerospace engineering when  they when they made the promise to my client not only that they had this program that he would be able to but that he would be able to complete this program and receive a degree it became pretty clear after a number of years that in fact it was inversely if not have had such a program  in addition the district court held that mr sweet and cannot bring a claim for both breach of contract and fraud now the district court dismissed a breach of contract claim but then also dismissed the fraud contract claim and not address the fraud claim on the merits itself also we believe that the district court misinterpreted a complaint here as well and and this goes to my final argument is is that the district court in this case could have easily without prejudice to st louis university allowed the appellant to amend the complaint to to clear up any confusion that they had the disagree or misinterpreted our complaint even though we believe it was clear but regardless the complaint could have been amended to make it clear that mr sweet and did review the handbook before he enrolled that issue that mr sweden has asked the court to look into as well as the other issues squarely implicates missouri's educational malpractise doctrine in order to answer that question whether or not actually has a ph d program based upon the facts that were played which is that mr sweden actually spent five years in the ph d program mr sweet and was appointed an advisor a professor  that mr swede in actually sat for the qualifying exam although later than he expected mr sweet and failed to pass the qualifying exam that mr sweden was given an opportunity and actually attended a number of com princes with professor will bow and professor in preparation for that exam and also significantly mr sui dand completed over ten credit ten courses for thirty credit hours so the facts play actually demonstrate the existence of a program and what mr sweden is asking the court to do is to find that well we're going to evaluate whether or not that's really good enough in the context of a p program for mechanical an aerospace engineer and that's precisely what dallas your motive to cerro gillis say the courts will not get into and really at the end of the day the complaint sui dan is that he was not awarded a ph d in aerospace mechanical engineering and that's why the educational malpractise doctrine disposes of this case it disposes of the breach of contract claim the fraud claim and the those are the third point advisor soon enough because he admits he was appointed an advisor december two thousand and thirteen the failure to administer the qualifying exam soon enough because he admits that he ultimately sat for the qualifying exam and did not fully pass and the failure to provide reviews in january of each year even though he does state and pleads that he got a lot of feedback from a number of different sources throughout the five and a half years in the program now regardless of how mr sweden asked the court to break down the analysis at the end of the day that the question for this court is the same and all of those discrete issues are really bound up in the overall question of whether or not mr sweden should have been awarded a ph d after five and a half years now in gillis this court has recognized that generally courts have or frayne from recognising educational malpractise claims either in tort or in contract on the basis that universities must be allowed the flexibility to manage their own programs and gillis sets out to point test here and this is very important it's not enough to merely allege a breach scuse me a discreet promise in a breach that's the first part of the test if that is not met the claim can't go forward adult but under the educational malpractise doctrine assuming that is met the court must take a step back and not make findings of fact at this point but really ask itself what what analysis would be appropriate or would be required in order  through the claims and not just the breech element but all of the elements and to the extent that any analysis would require an analysis of the quality of the education received whether or not the school educated  no question right if you take any rule to its extreme including this one that there could be problems but here that they're limiting principle yes i think there are a number of looming principles one of which is what courts will look to in the  versus inadequate performance so as an example the complete absence of reform would be that in five and a half years there was no advisor appointed at all ok that's not what's played here what's played here is really inadequate performance that the advisor was appointed but it was late and that while you know it may be i didn't have my formal advisor appointed it was pled that at the outset of the program he met with the department chair developed a plan of study and in fact took courses throughout that entire period in furtherance of the program so one of the limiting principles your honor is the courts will look to whether or not there is a complete absence of performance versus inadequate perform and adequate performance really implicates all of these issues about the doctrine which is how does the court over a five and a half year period determine whether or not mr swe dance failure to achieve his ph d was because there was a delay in the appointment of an advisor or was it because he pled that he failed to fully pass the exam he also pled that he was not properly prepared for the exam by missed by his advisor professor  also pleads that maybe the school didn't dedicate adequate resources to him and those are exactly the types of inquiries but not that the court has the settle at this point but the missouri law says the court will not get into in a claim as pled as asking the court to get into those issues the claim is bar there are also some important policy grounds that are underlying this doctrine there set forth and discussed in the briefing i just want to touch on a few of them very quickly now the first is that one of the policy grounds that supports this is the inherent uncertainties about causation the nature of damages and that really touches on what i just went through which is you know a court would be required to sort through over a five and a half year period in a  d program for aerospace engineering and figure out what are the real reasons what were the real causes for the harm which is the failure to award a p h d and courts will not engage in that analysis because of all the uncertainties and some of them that were specifically mention a dowser motive go to the student in the student's performance whether or not the student was properly prepared whether or not the student engaged appropriately with the material whether or not the student had a bad day on the test those are all issues that court should not be involved in adjudicating the other policy principle that i'd like to raise is it is really related but the possibility of the courts would be embroiled in overseeing the day to day operations of the school and in here and particularly a ph d program for the cantle in aerospace engineering in the missouri policies the court should not get into that courts should not be in the position of deciding whether or not a ph d should have been awarded or should not have been awarded that's up to the university and that's the policy of missouri law that underlines this doctor i also want to touch briefly on leave to imette so the narrow issue that's before this court on leave to a man is whether or not the district court abused its discretion and deny and leave to a man and there is nothing in the record that indicates that the judge that the district court abused its discretion there's a long line of cases in the eighth circuit wogan no star minneapolis firefighters which are all cited in the br little can a blank check to amend affect the onus is on mr sui dan to apprise a court of precisely what any amendment would look like and how that amendment would cure deficiencies in the code in the complaint and mr sweet and here did not do that within twenty one days from the data filing of excuse me the motion to dismiss mr sweet as a matter of right could have filed an amended complaint he didn't do that motion for leave to amend describe to the court all the different reasons why an amendment that he would make would cure the deficiencies and the facts that he would plead that would change the result mr sweden did not do that here instead what he did was included at the end of his opposition to the motion to dismiss up a functionary paragraph that simply said if the court disagrees with me i should have a chance to do it again and that's not enough  the district court's decision nor respects the chris matthews thank you seamless university took almost a quarter million dollars a mistress we n to her a degree in a program that simply didn't exist that does not require this court to micromanage the school or the program to simply look out whether or not  that ruling was based on the fact that the school had not made or that the plaintiffs in that case could nap could not demonstrate any promises any specific promises that the school made to them even an oral argument to his court sided in their decision that the council could not cite at oral argument any specific promises that the school made that is not the case here we have cited to a number of promises specific promises at that school has made the several cases another case that is cited throughout the briefs from st louis university and that's a very different case as well as a case asking the court to essentially get involved in and the supervision of their own employees of their own their own instructor's own professors that's not what we're asking here where is a very different case in the cases cited by the university here by only the issue of the amended complaint it would have been impossible  plainest to know what the court would misinterpret in their complaint it would have been impossible for the palin's to yes at at these issues that the court raised because these were even issues that were a  principle argument made by st louis university the district court essentially came up with these issues on their own when it ruled that mr sweet and had not relied on the handbook but he didn't say he didn't even look at the handbook until two thousand and thirteen as simply not true the complaint does not say that in the end if that is a question then the act in that portion of the complaint can certainly be amended very easily without prejudice to any party to make that clear so the fact i'm a mr sweet and did not have the opportunity to know until a judgment has been entered by the district court that these were issues in the mind of the court that need to be clarified well certainly once you are aware of that it would be impossible to file a motion to reconsider and within that motion to reconsider point though these are errors and see we move to amend our complaint to address this question and here's the amended complaint right their previous decision after judgment had been entered we felt it was more prudent to to simply following nocive appeal and bring up these issues on appeal because obviously there was also the issue of education my practice that we felt that