recently that tuesday afternoon your ok thank you and we assume both of you agree we should go forward with the argument today real business is managing afy on fox river liabilities and directing happy on fox river litigation in the united states when word has agreed to in appian for liability it may occur in contract in connection with the investigation and the remediation of the lower fox river in wisconsin in return for this ind historic insurers in the pursuit of those claims has taken place in the united states and in fact in brown county wisconsin in the words of brian tauscher the company's one of the company's general counsel and one of its directors windward has complete discretion to manage the defense the fox river claims now that testimony by mr t place in the brown county courthouse which is directly across the street from the district court the is sitting in green bay mr tauscher testified for several days windward similarly christopher gallon or one of three directors of windward testified in a deposition in the brown county proceedings that when word has the right to conduct the defen to make insurance claims to negotiate with the government it has the right to manage the entire fox river issue on behalf of afi and indeed the district court in hearing the district court erroneous lee concluded that personal jurisdiction over when work was lacking and in reaching that ruling the court relied on  especially three things first the court concluded that simply employing a lawyer to represent its interests in the united states was insufficient second that evidence about the ownership of women where it does not establish that when word purposely availed itself of any form and third that when word substantial stake in the outcome was not enough to establish minimal contacts the court was wrong on all three counts the concern expressed by the court with regard to employing a lawyer was phrased in terms of hiring a lawyer to defend an action and of course under those circumstances if a foreign entity is sued and decides to retain an warrior to defend that action i think one could hardly argue that that establishes minimum context but here the lawyer in question mr tauscher resides in new hampshire is a half owner of windward and one of three directors oversaw the remediation of the fox river on behalf of afi on he was involved in the day to day management of the litigation involved in the fate of day management of the remediation so this is not a lawyer who was retained to defend an action this is a lawyer who is the quintessential agent of his principle in this case when word and was involved in day to day activities certainly enough to constitute minimal contacts for the purposes of a specific jurisdiction  similarly to suggest that when words stake in the outcome is not enough but the law is the fact that when the word is overseeing the litigation in or limit that question to simply what other businesses winward have the answer would be not i mean it is a single purpose and city that was specifically organized to manage these liabilities so it's it principal business in fact that one one could argue its sole business is to manage these liabilities and to pursue the insurance after the onset story insurance for coverage have which is why the district court in an earlier ruling concluded that it may very well be a real party and interest which which we believe it is it is the real party in interest is there some amount of a fund it's in escrow some put no you are on money that everybody's fighting over or maybe there isn't anyone well not all the money that everyone's fighting over are the historic costs of cleaning up the river it's been estimated that the total cleanup costs will be eight billion dollars so there are contribution claims that both n c r and at ffion are pursuing against the glass shelter mple testimony ample evidence in the record of when words involvement and yet the court ruled on the papers and i think both both sides agree that if there are factual disputes the court must hold an evidentiary hearing and indeed when a motion is decided on the papers then the movement in this case black question and that was certainly one of many questions that could have been resolved in an evidentiary hearing the court took the affidavit that was filed in the ancillary proceedings and disregarded the sworn testimony in brown county that he was an employee of windward that's just one simple example of why an evidentiary hearing ought to have been held in this case in the in the event that the court was inclined to deny the motion well i mean we believe the court should have simply grant the motion that compel and found that there were indeed not only minimal contacts but but significant contact judge agrees but the main action the the contribution action where a p i and glad to alter not when word are parties is also before judge restock the long history in fact the statutory jurisdiction given to this court is only over final decisions except in certain limited circumstances one limited circumstance the only one that could even potentially life here is a collateral order doctoring but for the jurisdiction is geographic you have jurisdiction over the district courts in this circuit and not elsewhere flatow did initiate this case in massachusetts in the first circuit and if it had stayed there then the discovery order would have been collateral and there would be immediate appeal but because the order was rendered here within this circuit appeal is available at the end of the whiting action the contribution case about the circuit costs and therefore is in our locked door here and on permit that this court has found as much in the sick guy case although it was deciding the converse of the issue in that case there was a you know like torii order this repeal needs to wait until the end of the main action so that justice response can manage the case and be that bring the case to trial through discovery which is the special province of the district court before i go on much further i want to make one point about the submission it is actually correct that we do not contend that this appeal is moot right now in thirty days and may well be if the consent orders entered is only reviewed i an appeal outside of the platter order situation where they work a sensibly inter circuit rather than in trot circuit there are two relatively old cases that were pointed out in from the us i believe it's the southern district of florida and the middle district of florida so even there we don't have the same court deciding the discovery issue that was attempted to be appealed the only other decision is a decision in a federal circu the patent case they applied the rules way that every circuit does which is to say that if you are appealing from one district court in a form in a as in one circuit and there the main action is another circuit we will hear the appeal frankly doesn't make a lot of sense given the scope of section twelve ninety five patent court appeal jurisdiction but that doesn't matter here the important part is in that case the court again apply the principle that if there if the appeal comes out of two different circuits it can be heard but not if they're from courts within the same circuit so you fundamentally is this court cannot even decide this dismissed as just case companies certainly are not charged with carrying on other business to avoid jurisdiction it's courts but when we're does it is an investment company it does have historical liabilities to former appiah and that is where the payments where they relevant that is where they come from when word is not making payments into the united states when word is not here managing the case in the united states much is made about m role and he is certainly important person with respect to the mediation the fox river but he does a number of things for a number of different companies he is not when word in body wherever he walks is for instance a dawn the lion's share of the cleanup work on this river to do that they created an l l c to do the day to day operations of cleaning up the river management dredges that sort appy on the entity that the government has a claim against for at least thirty more days the entity that is responsible for doing for cleanup the mere financial interest that when work may have to recruit some of the money it is spent is not enough to say that it has come into the united states and started conducting business here such that is availing itself of our laws and such that it is present here for minimal context that th company that has a financial interest in the outcome of a litigation is enough to grant personal jurisdiction is if it's flabbergasting its rhetoric companies have lots of interests all over the world it does not mean that they are present in the jurisdiction you heard and i've heard sort of for the first time today about the brown county insurance litigation you will find it difficult to look through the record to find any information on about the facts of the matter better than anybody in the house at afi and that does not mean he was there as when porter he was there giving testimony on behalf of the f b i this doesn't create a context for when working in the years ago but it that the insurance companies ended up settling rather than going to the empire appeals process and so that that's part of it is done all that remains now is that this dispute that's in front of judge response about contribution and with respect to a p i it's cost recovery not contribution for the monies that were spent cleaning up the river and the short version of the case is and c r and at the on together say they paid hundreds of millions of dollars and far more than their fair share of the merits of that it likely will never come up to this court because again there has been a consent decree with the us government that we expect will be approved but has only been lodged at this stage but this is a that the pending dispute is inter p r petes of the parties who are legit polluters rather than with any of the affianced insurers any longer there's also began for specific jurisdiction and it is in the papers there's a need for a nexus for some pause you can't just say that the people have come into the united states and that gives personal jurisdiction for specific jurisdiction there does need to be some kind of causal connection and this court has said it's got to be something more than  money went to and and blatter offers nothing other than speculation and you know it's had the opportunity to look at these documents to say gee there seems to be a gap where is this we would expect to see this and it's not here and we don't see that argument all we see is well we can't really be sure but how do we know for sure that the documents are duplicative well that's that's not the standard they need to show that they need this discovery and there's no reason to believe  ose are cases where the court the district court is given discretion says in the court's discretion you made toward these on these cases that is not would rule thirty seven those for better or worse rule thirty seven is mandatory think is simply flat out wrong in the record will bear that out similarly with regard to the argument of why did we get those documents from happy on first of all we initially did seek to obtain the documents for math beyond and judge agrees box suggests that there are other ways to obtain those i have documents which is what set us off on the subpoena to windward but i think on the more fundamental question of winberg so i think it's certainly in this world of electronic communications it's it's frankly almost silly to suggest that after the on would have the same set of documents as we are now with were our to this court's jurisdiction prior to the twenty thirteen amendments to rule forty five the federal courts including this court recognized that a pretrial discovery ordered may constitute a final appealable order when issued by a district court in an ancillary proceeding and said district court is not within the circuit of having appellate jurisdiction to review the final adjudication of the main action so that the parties both agreed that had he stayed in massachusetts we could have taken an appeal to the first circuit now what's different about this case is the purpose of rule forty five is to allow transfer when such is the case here there are complex proceedings and the district court sitting in the issuing court such as judge breeze block here is more familiar with the action so i see that my time is up if i don't want to cut you off on this jurisdiction sherzai i think it's important i think judge williams was trying know to me that i don't see how you have jurisdiction i just i'm not following that and your ancillary an underlying action or both in the same district court and from the same judge so i don't think this is somewhere to the eleventh circuit or the federal circuit and i think what you're trying to do is ignore it geographic limitations on our jurisdiction by seeing distinctions with between within and beyond our circuits geographic stiction is a loser e know what i'm seeing is that the rule for the change to rule forty five in particular forty five allows for transfer in exceptional circumstances we shouldn't be penalized have we stayed in massachusetts when there is no question we would have had an appeal to the first circuit we shouldn't be penalized by seeking transfer to the court that presumably has has greater for merely arity with the case  that was the purpose of rule forty five rule forty five doesn't events any intent to limit appeals and in fact in a situation such as this we would be faced with the prospect putting aside the the consent decree with a four to five week trial only to come back to this court and say we still don't have the documents that we were entitled to from windward so i think that forty five out allowed for transfer we moved for transfer because of the exceptional circumstances the district court in massachusetts agreed with us and i don't think we should be penalized for seeking that transfer we could very well have stayed in massachusetts but i think that would have been a disservice to the district court in massachusetts in a case where as of yesterday there were nineteen hundred and six docket entries in this case and to ask