think the question being raised as well how can you have a local rule that provides for the withdrawal of the reference when you have a statute and you have a bankruptcy rule that says a district court has to do it and the answer to that is in the first place this is a district court rule  bankruptcy rules are part of the district court rules so you're centrally have a district court rule that says if the parties haven't agreed to a jury trial and there's a right to a jury trial the references which one counsel a little confused i  think we're agreeing with each other although it may not sound that way my point is that it will appears to me that the local rule nine zero one five two b which authorizes a bankruptcy judge to hear a motion for a jury trial and also to withdraw the case from the bankruptcy court and to certify proceedings is in conflict with the federal rules of banker pursued bankruptcy procedure five  one one a which is a motion for withdrawal of the case of proceeding shall be heard by a district judge not by a bankruptcy judge right now are we saying the same thing or not i well i think we may be talking about two different things because this did not actually involve a motion to withdraw the reference i agree that if we had made a motion to withdraw the reference that would have gone to the district court judge here we follow the procedure that was outlined in the local district court rule that says you go to the bankruptcy judge if he certifies it for a jury trial then the reference is automatically withdrawn and so i submit if there is a question as to who has the authority just to withdraw the reference i think i agree the bankruptcy judge doesn't withdraw the from himself it's the district court that withdraws the reference now if we take a moment to take a look at the statute that children until the district court is presented with the issues they could see court still has the matter this district matters pursuant to general rule general order and local matters are referred to the bankruptcy court and then there's also a rule that says but while we're getting that referral if you find bankruptcy judge that there's a right to jury trial references look on so in other words this is a district court speaking to the bankruptcy judge there based let me just read you something from the bat finally sigma responded only on the merits in bankruptcy court and did not argue to the bankruptcy court that it could not hear the summary judgment motion because the reference had been withdrawn via l b r nine zero one five dash to the we do not generally consider arguments raised for the first time on appeal and declined to countenance hiding in the weeds the bankruptcy court properly heard the motion for summary judgment cigna waived its right to raise the issue on appeal your reaction we made a specific motion under the local rule asking the judge to certify the matter for jury trial and pointing out  in the game that i was that was really in the game and then went in and they say when you got into the merits in bankruptcy court you just argued the merits and you didn't argue you know the jack that it couldn't hear the issue but you went ahead and had it litigated well you lost and you can't have your cake and eat it too well i would have brought come in with the same motion i don't think i would have if you would run would you have would you have moved to was to vacate your victory well i think i submit that the court's initial ruling lead to take an interlocutory appeal that would have been a lot of everything and you know markets repeals or just favor the usual that the favored procedure is to follow through the case to the end and then take an appeal at the end and raise all of those issues at that time what about your ordinary course of course of business and our expert indicated in her declaration that this was his usual crisis management well this is you know this is maloof your expert and the problem with your expert is that everybody said well she she never was specific she just mentioned a lot of general stuff and so credit managers are drawn from all industries and they and they share they share tips and techniques and they talk about who's not paying their bills and what do we do about this company or that and so she certainly had the expertise to know about cashflow management failed to mention the election what is standard when a company is in financial crisis she talks about this old school about sitting down and having a meeting to decide would bills to pay but she never went into the fact what happens when a person in the industry whatever that is and in the credit world decides they have to pay one or two creditors to stay alive is that ordinary course of business when you decide i'm going to pay the creditor who is now providing me with my critical computer services or i'm going to die that's correct and if you look at it it seems as though this is a little light i think is what we're trying to say here with regard to what's the normal course of business when you have a distressed creditor or distressed a debtor trying to pay certain creditors except for her into crisis and decided i've got to pay those people are going to keep the doors open and i don't think i'm trying to figure out how she tied that in when she did a great job of determining how many days it takes to pay the payments and what's the standard in the industry but somehow i'm trying to figure out she tied that into this creditor in crisis if that's important at all well i was essentially a transition from my healthy company to a company in distress and let's look at it exactly and so how does your opinion fit into that she just said this is the normal in the industry of how they pay bills she didn't say when someone goes into crisis it stays the same they always pay the same or they don't pay say i think i was that they don't pay the same because they're a position of crisis and they have to start deciding how they're going to manage their cash and issue here is to dunmore case and i believe your honor to scandal and discussed the potential conflict between the provisions of local bankruptcy rule nine hundred fifteen dash to be and rule five five thousand eleven as a matter of statutory construction i think we look to harmonize statutes before we declare that they're in conflict i think there is a very strong argument that there is no conflict at all of the provisions of the nine hundred fifteen dash to be made but i have not yet determined whether this party has a right to a jury trial and the reason i haven't made that determination is because i have pretrial proceedings that will make that will reveal whether or not this can be decided as a matter of law in which case there there was the separate issue on once we went to the summary judgment which was a separate proceeding from a certification proceeding and we do believe that has taken a wave that's right to raise this issue because the issue raised in sort of a case in motion was was seeing my title to a jury trial should the matter go to trial for determinations i that's interesting i never heard that before if i can decide that the summary judgment motion should be granted therefore there's no right to a jury trial so therefore it proceeding there may be a constitutional right to a jury trial right now unlike dunmore which was a non court proceeding event procedure judge does have the authority to render a final judgement in a court proceeding so your view has jurisdiction and your ar ment here is that it had not been transferred or withdrawn to the district court as of the time of the summary judgment not only had it not been transferred but there was no legal reason that should you have been transferred so your view is that had the summary motion summary judgment motion been denied then it would have had to have been transferred yes that is exactly our position and we believe that in certifying the motion at the outset of the case that staying at for pretrial proceedings which is consistent with a number of the cases that we  case that approves of the process that you just described there are a number of cases that are raised in our brief to discuss the bankruptcy judges right to hold a matter through pretrial proceedings with the kathy up when the right to issue a trial becomes evident or becomes necessary it may not then be heard by the bankruptcy judge without the consent of what's the primary case that you believe covers the situation you've just described there is a second circuit case that was distinguished by dunsmore and if the court twenty two i would the penn state at one twenty eight and i correct myself it's not a second circuit case of the fourth circuit case ok let's jump then to the question of then you're in your view then the question is whether there is enough to get my summary judgment on the ordinary course of the this defense because if there is then you kick into the district court for your jury trial as far as i can read these cases you might be able to tell because i wrote the wire and case and i spent a lot of time on this that these generally tend to be decided this fact issues by juries want some of the cases were jury trials and so why doesn't this at least generate enough to get to a jury i mean i read the maloof declaration again  and why doesn't she talk about enough to get you at least to a trier of fact there are a number of reasons for member prior to the memory of the bankruptcy act so the requirement of five forty seven c two is  summary judgment right and how is this and if there is a genuine issue of material fact then judgement goes the other way and you go to trial that is the standard your honor why isn't that come out or why isn't there a genuine issue with respect to the ordinary course of this based on that there were two discrete failures of of proof at the trial court level the first one was frankly the issue that in  in the court below was really being pressed pressed by my client which said that for this debtor in its course it does under five forty seven c two cap be it simply stopped paying creditors it was an utter meltdown and the they are dead or may not prefer one creditor over another by selecting to pay one but not the other during the debtor slide unless it's in the ordinary course of business with respect and we believe that begs the question of what is the ordinary course of business your argument would say once you're in a crisis you can't pay anybody it's automatically a preference and that's why it was intended that was the legal issue that was raised below now we never got to that issue for for two reasons and  judge bankruptcy judge expressly declined to adopt our theory because he never got to the evidentiary issues as to that issue judge shell and essentially said there was no evidence about evidence there independently there was the industry standard and this is the issue five forty seven see to see that while it was project primarily focused on where it was sigmas obligation to come forward with evidence about the industry and while they did put in an expert declaration it was an expert in cash management and it failed the very clear instructions of just this quirk both in kaypro  speak to the practices of the industry now as your honor notes there are there can be a different practice and or a course in business for the distress business but once again we must circle back to what is happening in this precise industry now when think ten things that have to be the health care industry why couldn't it be just a broader analysis of what happens to companies with crisis the industry includes those that are in financial pressure there are two potentially terming industries one is the software industry which is cigna provided software services alternatively it could be this retail industry but to say it is just generally business in crisis would have this rate the very the facts that are presented both in wyler and kaypro in which the court looks to the evidence of in the case of kaypro it was a personal computer company case of wyler it was recreational via the internet and she cites no authority no basis to explain why she would know anything about any of the industries that were germane to this here she says theresa backoff cringe when i three the decision process in some cases reflects the need for the merchandise or service as it affects the operation of the business and in this case the need to continue to pay for computer support to allow the debtor to continue their operation of the business was paramount it appears that this review weekly meetings was based on the range of parameters which the managing group had to determine would meet the needs of the business to sustain the ongoing operation not enough to generate a travel issue as it is not specific to the industry and specific to them and that addresses the sub section of five forty seven c to be this is the issue of the relationship between the parties but it doesn't speak to the separate requirement as express must address the terms of the ordinary course within the industry so the fact that this individual debtor was in distress is an important point for the purposes of what is the business relations of the ordinary course of business between and the transferee but under five forty seven c to see they might meet must be made according to ordinary business terms and under your decision and why other that requires an inquiry into the specific industry th provided it it found that the factory making payments on it deferred basis under a workout arrangement did not remove the transaction from the ordinary course but having said that there's no evidence in this record to suggest that because we review bankruptcy baptista exultant they like to clean up their own messes and they do and that's fine but we're now back at the district where we're now back to match looking at what the bankruptcy court did so i think w have to put that aside and i think i still got to worry a little bit about what that district girl said about what happens when the manager because that's the basic issue they've got a jury trial going judge try to mention this may be disputed issue of fact they did blew that one right out of the water just by going around the room it's a little problematic for me if you're on it went out just the way that this gets to the bankruptcy court is section twenty eight u s c one fifty seven allows for matters to be referred to the bankruptcy court you know we go back also to the constitutional issues we litigated for years and whether we can even have certifications what the bankruptcy courts become an institution we know what that is but then there's a crucial point and this is what bothers me when they ask for certification for a jury trial they start tumbling and if you go around and say well we're going to hold it up for a minute we're going to look at this this other matter here on summary judgment it just it just concerns me because if it had gone to the so the district co for whatever that's worth this it usually was held in the bankruptcy side that's true and i was looking for some authority that said to me ok that's ok let's look at the desk and i understand all the conflict between what the hierarchy of the district court ru and all that stuff just so i can correct one issue that isn't clear i don't know that it's been made clear upon the appellant had the alternative to take this to feel to the district court it didn't make the election it went to the bankruptcy it doesn't matter because we're going to get the no going away exactly the right we're reviewing it on the bankruptcy court side i'm talking about the institutional issue i think i understand your honest position and i believe that in order to rule that the bankruptcy court did not have jurisdiction to rule on the summary judgment motion one would need to first run afoul of a number of the cases where the reference to the issue of the reference came up in there also in our brief each of these courts i'm not aware of a single case in which a court has said when the summary judgment product motions filed or any other non jury matter is raised we will withdraw the reference to the district court setting that aside if the bankruptcy judge cannot hear the summary judgment motion it's it would be our position that it runs specifically afoul of section one fifty seven a title twenty eight of the united states code because one hundred fifty seven specifically gives bankruptcy judges the right to jury trial and by god if you get to the point where you need a finder of fact to make peace determinations you're going to get your jury trial and there are some subsequent clean them up amendment in the in the bankruptcy act that provided that the bankruptcy court may have the only point i would just briefly comment on subject any questions of course would be twenty eight u s c section one sixty seven b does of course talk about court proceedings and non court proceedings and i submit that that is irrelevant because all of that subject to one fifty seven eighty which says to the district court may provide that any or all cases hundred title eleven shall be referred to the bankruptcy judges so before the judge gets into whether it's a court proceeding or a non court proceeding first  to get the case under section thirteen thirty four so here the bankruptcy judge gets the case from the district court but it's got a string attached to it it says now and i think that's why bringing up the institutional question seems like the district court of bankruptcy court here in this case are on our own sort of a balance being and we're going to make a decision whether under these circumstances a bankruptcy court by putting that string on it can now hold those if you want core proceedings and summary judgment proceedings on that