seventeen dash three zero two three three p destroys the brand the claims primarily arising out of the duties created by non maritime motor fuel franchise agreements requiring b p to protect its brand for the benefit of its dealers in so far as tort claims are asserted the b p dealers do not moreover the acts primarily occurred after the explosion of the deepwater horizon or long before that explosion but were only discovered after the explosion the effects of the tortious conduct that has been asserted or that we would like to assert if given the opportunity to amend the complaint the torches conduct has effect on maritime commerce and no relationship to traditional maritime activity it's a sale of motor fuel to same as the court dead and i recognize the court was looking at more than just our complaint the court was primarily concerned with the complaint that the plaintiff steering committee did on a whole variety of parties we were sort of lumped into that to say that the b p dealers to say that we cannot assert a claim that could not possibly sound in admiralty which is what the court below did said it would be futile to allow us an opportunity to amend if that's erroneous it requires a reversal and because that bird view by this court is a good no overview my only question to this court is would you after considering the facts that i'm trying to advance to th consider in your mind whether or not it would be possible to for the b p dealers to assert a complaint as you do or that the conduct or we have asserted two types of conduct or we would like to assert two types on one is contractual relating related to the franchise agreements because the franchise agreements was not protecting the brain oh allow me to elaborate on that what happened in the american public is very forgiving and the oil spills happen but the american public particularly the consuming public do not like liars so what happened here is following the deepwater horizon well we had more corporate pronouncements from b p and those corporate pronouncements attempted to minimize the oil spill that was occurring and as a kept shifting and shifting and shifting they were shown to have been a line about that in callous disregard that's what the american public at the other point which is was really a critical time and i believe it occurred in may of two thousand and ten about a month later tony hayward the c e o of b p makes a public pronouncement of saying i want my life back boy did that effect on the consuming public did that destroy the brand did that cause consumers not to go into the station heck my own wife upon which the grant got damaged i mean there was other damage that occurred to people in the gulf coast because of the b p s oil spill and the explosion and personal injuries and things like that one in us that was no ounce of oil that rolled up on our station property when we were claiming that we were only denied gas by people who are trying to travel to the gulf area which they couldn't do or didn't want to do because of no that's not our thing our claim is consuming public has lots of choices you can buy your gas at chevron or shell or b became known that b p were a bunch of liars who were doing everything possible to try and save their precious well  and disregard the environmental problems that they had created now that caused other problems but from my point of view the consuming public as soon as the consuming public recognize p was a buncha liars they said well we know how to shell b p will just stop buying their gas and boy did that happen effect on my client it didn't really so much have an effect on the b p dealer who was located down and then a scallop louisiana those guys know that now the place where it had like an unbelievable impact is in sanford cisco california miles away from the oil spill well we'll teach those people that's our claim our claim is a destruction of a brain it's really a contract based claim that has nothing to do with that that work there are lots of different ways that a corporation can destroy its reputation but in this situation it was because of their conduct after the spill which resulted in the animosity though which we claim now if you're saying had the spill never occurred would the animosity have developed don't think so i mean lots of other oil companies continue you're complaining about is centrally downstream resulting from the spill what is your best case that we nevertheless attach maritime jurisdiction to the original conduct but not to the downstream how do we do we are we allowed to split maritime jurisdiction and i want i don't think you need to but let me let me try and address your point directly i mean i think everyone agrees that the coupon task that exist regardless but now let's turn to the court basically on the court case claims you have to look at whether the court  or wasn't caused by a vessel as i said in the outset we don't claim that a single negligent act into her aboard the deepwater horizon is the basis for our damages accidents happen negligence on oil rigs happen that doesn't cause a complete destruction of the brain so the location tests you must look at that now for the people who suffered oil do the other stuff that we now know from history cause the oil to the regular explosion the oil the pump they have a claim amorally claim no question about that our claim is just entirely different because we don't focus on the act of some engineer who happened to have been on the deepwater horizon we focus on the public pronouncements  the just the corporate pronouncement after the fact that they're trying to contain the reputation let me try again and address the people who had a whale spill up on their land that oil was going to spill up on their land after the beat the deepwater horizon exploded regardless of anything that was said in the corporate headquarters and no but it could have been corporate headquarters i mean get out there with your mops and in your books or person and keep that all from getting to them i sure and there is mitigation claims that they could be brought in there and we did this and we did that that deals with that admiralty claim i mean if the consuming public had not become so angry at the statements  we would have suffered the same problem remember the exxon valdez case the exxon valdez case did not result in widespread animosity towards exxon or exxon mobil where the consuming public to stop buying their gas i mean it was a terrible event that happened caused widespread damage particularly a word occur but that that's why this claim is so different because this claim was that then suman public being so angry at b p because of what  sad and did after the fact rabbit b p did other things where they tried to mitigate their damages where they tried to correct their public relations but when you start out by sank all it's just a little trickle in the big pond and then well maybe it was slightly more than a little trickle than yob was probably more than a little trickle and then all the sudden there's a discovery that it was humongous that's when the consuming public says you've been lying to us we're mad at you for lying to us we're not going to do business with a liar we're not going to do business who have with somebody who has absolutely no relationship and i see i'm in my last couple moments elation ship we're just not going to do it so that's really the nature of our claim and that's why i'm really saying we shouldn't be dealing with this claim based upon the pleadings that we filed really very early on in the case we should have been given patent least one opportunity to amend our complaint so that we can raise the claims please the court george hicks for the b p entities plaintiffs filed a garden variety negligence action against b p seeking damages for economic loss caused by the deepwater horizon explosion and oil spill their complaint repeatedly alleges that as a result of b p s negligence in causing the spill and failing to take effective steps to mitigate the spill plaintiff suffered a loss of revenue because of suppose a consumer animosity against b p under the supreme court's grubert decision plaintiff's complaint clearly triggers maritime jurisdiction and the application assistance of maritime law and under substance of maritime law the well established rogan's dry dock rule kluges recovery of economic damages absent physical injury to a plaintiff proprietary proprietary interest plaintiffs here seek only economic damages and they do not allege any physical injury to a proprietary interest therefore they are barred from any recovery and their complaint was properly dismissed the plaintiffs don't dispute that if maritime jurisdiction applies then their complaint was properly dismiss instead in an effort to avoid the straightforward application of well established law plaintiffs reconceptualized their complaints into an entirely different complaint than the one they actually played first landis maintained that they have alleged claims for contract franchise and trademark violations but in fact the complaint alleges a single tort claim for negligence and does not even include the words contract franchise or trademark second plaintiffs insists that their injuries stem from post spill land based conduct but in fact their complaint repeatedly alleges that plaintiff injuries were caused by or were the result of the deepwater horizon incident thereby triggering maritime jurisdiction plaintiff's remaining argument is that they should be allowed to amend their complaint this argument fails for numerous reasons including lack of notice undue delay prejudice and futility in the nearly seventy hears that this case was pending in the district court plaintiffs never moved to amend their complaint never submitted a proposed amended complaint and identified with the particular any this court requires what facts or claims and in minute complaint would contain despite the admitted availability since may two thousand and ten of the information they now argue would be in a new complaint before this court plaintiff do finally identify to propose new causes of action but that is far too late in the game and it would prejudice defendants to allow plaintiffs to replayed nearly eight years after their original complaint in any event amended amendment is futile for two independent reasons first the facts and claims that plaintiffs now propose are still intertwined with the deepwater horizon incident thereby triggering marriage i'm jurisdiction and the rovers rule but second even absent maritime jurisdiction the two new claims they allege fail under georgia state law their new negligence claim fails because of georgia's economic loss rule and their new claim for breach of the covenant of good faith and fair dealing fails because under georgia law the covenant does not provide an independent basis for liability the district court correctly dismissed plaintiff complaint and correctly denied plaintiff requests to amend and its decision should be affirmed and i'd like to turn a little bit to plaintiff's original complaint which i did not hear my friend on the other side talk too much about and i think there's a reason for that the original complaint that they filed in december two thousand and ten repeatedly alleges garden variety unintentional tort claims an economic loss resulting from b p s and other defendants negligence in causing the spill and not mitigating the effects of that spill and they repeatedly allege negligence gross negligence and willful wanton and careless disregard there's absolutely nothing in that complaint pleaded in december two thousand and ten that has anything to do with contract franchise trademark place  in addition it while the plaintiffs now are claiming that their original complaint is related entirely to post spilt land based conduct again that's just completely refuted by the language of their original complaints from beginning to end all quote from paragraph one this is a class action to recover damages suffered by plaintiffs as a result of the oil spill that resulted from the explosion and fire of boyd aboard the oil rig deepwater horizon living all the way  forty eight the oil spill and the contamination therefrom have caused and will continue to cause a direct and proximate loss of revenue and or loss of earning capacity to plant this so i think it's very clear that their complaint a originally played it clearly triggers a maritime jurisdiction that they say in their brief that they there's a particular paragraph i think it's paragraph thirty eight that they try to use to claim it has something to do with deceptive conduct by b that it's a true statement there's simply nothing in the original complaint pleaded in december two thousand and ten that takes this in any way out of maritime jurisdiction and regardless even the one negligence claim that they did plead it would fail under georgia very big footnote in their opposition to the motion to dismiss where all they said was plaintiff seek leave to amend to more accurately set forth their claims this memoranda will discuss the facts which such an amended complaint would allege that the mem never did get into any facts that it would allege much less any claims second judge bar be a help that any amendment within this complaint would be futile because it would trigger a maritime jurisdiction and i think that correct not only because anything that they would plead would be intertwined with maritime jurisdiction but i think you can also even go beyond maritime jurisdiction and again look at georgia state law so finally before this court now they never did before the district court and that gets to lack of notice and i think there are a number of other reasons lack of notice undue delay etc why you would find that there could be no amendment but going to futility besides maritimes or stiction even if you found that there was no maritime jurisdiction so they finally pleaded to claims before this court that they say that they would plead if they went back down well the first is just an another unintentional tort claim for negligence and that fails under georgia's economic loss rule and that's the general electric case six zero eight se second at six thirty seven six thirty seven and it's really just the exact same thing as the romans dry dock rule the second claim that they now say that they would would make is a claim for the breach of the covenant of good faith and fair dealing a couple  points about that number one this was definitely never raised below in fact at the oral argument on the motion to dismiss plaintiffs expressly disclaims any contract claims in this litigation so this is that pages fifty four fifty five of the transcripts of that oral argument district court asked quote your clients are not alleging any type of contract claim in this litigation right answer pure negligence your honor so you know it's already been a wave but even on the futility question so georgia law also says and this is at the the the heavy brief it twenty two the covenant quote the covenant cannot be breached apart from the contract provisions that it modifies and therefore cannot provide an independent basis for liability that's from us bank phillips seven thirty four se second seventy nine from two thousand and twelve but there are a number of other cases from georgia holding exactly the same plaintiff here don't actually propose a claim for breach of contract despite having talked a whole lot about how this is all about contracts instead they're simply arguing that there is a breach of the covenant of good faith and fair dealing but under georgia state law that claim does not go anywhere because there's no independent basis for liability so again i think on the futility of futility issues there are multiple ways that you can find that these these claims are futile but i do also want to talk about the other independent bas even before you get to futility why amendments would not be proper here and i think the first is is lack of notice so this court has said that while you don't actually have to formally move for an amended complaint the plaintiff still must quote set forth with particularity the grounds for the amendment and the relief sought and i think the best case that shows why amendments can be rejected simply for lack of notice is this court's decision mckinney the irving independent school district this is it three zero nine fed third three zero eight where the court rejected an attempt to amend saying plaintiffs quote failed to amend their complaint as a matter of right failed to furnish the district court with a proposed amended complaint and failed to court and the defendants of the substance of their proposed amendment moving beyond lack of notice i think you can also reject an image based on undue delay as my friend on the other side just said as early as may two thousand  they had these these supposedly deceptive statements or animosity causing statements that that cause injury but plaintiff filed their original complaint in december two thousand and ten so they were certainly in possession of this information at that time and in the nearly two years between their original complaint in december two thousand and ten and their footnoted request to amend in their opposition to the motion to dismiss in october two thousand and twelve again that's nearly two years they never made any attempts to amend or to try to include that information even though as my friend just admitted it was available as early as may two thousand and ten and then it for the almost four years after the district court rejected their claims the plaintiff did nothing until they finally moved to voluntarily seek final justice so there's this sort of inexplicable seven year plus delay that they could have brought the claims that they are sort of now kind of claiming that they would bring and i think that you know in fact judge winner you wrote an opinion in re south mark from one thousand nine hundred six this is that eighty eight fed third three eleven the court rejected an attempted amendment after one year where the facts were known when the complaint was filed i think that you know we are well beyond that at this point in this case there's one aspect of the undue delay that i want to talk about because it came up in the plaintiff's reply brief suggested it wasn't concrete but i do want to address it this idea that plaintiffs are somehow prohibited from the mending their complaint or weren't given an opportunity to do so possibly because of i think including bundle b one whether preexisting or filed here after our state until further order of the court there is nothing in there that prohibits anyone from amending the complaint second point many many many plaintiffs did amend their complaints during the p t o twenty five state period i'll give you just a couple examples docket number eleven dash seventy one docket number thirteen dash seven zero nine in these cases the plates us added causes of action they added defendants these are in the be one pleading bundle also and the court granted it often within a matter of days so the court never had a problem with it and in fact third point when the plaintiffs did finally request sort of to amend their complaint in footnote six of their opposition to their motion to dismiss the district court didn't say they can't do that because p t o twenty five is in place and there's a stay no it's simply addressed it and it rejected it without referring to p t o twenty five so i think any suggestion that  twenty five or any stay of these complaints in any way prohibited the plaintiffs from the many in their complaint at any points is simply not supported the very last thing i do want to point out is that you know to the to the to the extent that there could possibly be some sort of complaint out there that is so so far removed from the deepwater horizon spill which is not their original complaint and is not even what they now propose they would they would say i think that runs into a couple problems as well the first is that you know at that point you've got a fundamentally different case than it was in the original complaints and again i'll go back to an opinion that judge wiener authored here where even if that sums somehow sort of conceptualize a complaint that is so far removed from the deepwater horizon incident that maritime jurisdiction isn't triggered and we don't have that here in this case to be clear i think it would be so  fundamentally alter the nature of the case and be very prejudicial to the defendants and i think the second problem you would have with that is that at that point i think plaintiffs have a real relation back problem because under federal rule fifteen  complaint only relates back for statute of limitations purposes if it quote arises out of the conduct transaction or occurrence set out in the original pleaded well if you're at a point where you're so far removed from the deepwater horizon incident that you've somehow escaped the world of maritime jurisdiction i don't really see how you can relate back because at this point you've pretty much gone well beyond the the conduct transaction or occurrence set out in the original pleading so i think there are simply many many ways in which the this complaint here can't be amended whether it's lack of notice undue delay prejudice futility futility itself on their time jurisdiction grounds or georgia state law grounds it please the court my name is alan york i'm representing halliburton energy services eagle also i defend in the case below but i do not speak officially for the trans ocean into t's mr miller is here and trans ocean joined in has he's briefed before the court our arguments are defendant and with the trans ocean and the analysis that this court has reviewed from just bar b a time and time again an appeals from this case is just as good today as ever was and that is maritime law applies to these claims as to how liberman trans ocean doctrine now in addition to that we heard the toby text opponents argue significantly about the contractual claims that they have resulting from the original contract with b p as we pointed out in the brief there is no allegation that however or trans ocean was a party to that that contract there is no contract as based claim against these defendants the last point that i would make judge winners in response to your question about why judge b a determine that in a minute in this case would be futile counsel for b p definitely address the gist of the vast majority of those arguments however i wanted to point out that one of the other things the judge bar b a did say was that even if an amendment were allowed he would be unable and would not purposely ignore widely known and easily ascertainable information about the worst oil spill in history and it's important to note that in their briefing the toba text have been its have tried to segregate their claim out and said that it's somehow different from the claims that were pending before judge barbie as a result of these claims that those that something was done wrong in terms of the response to the spill the fact of the matter is that was based to this litigation those issues were tried ob in answer here question there was only one ground on which i got barbie a's order occluded amendment and that was futility undue delay is not in there secondly at the outset of barbary we talked about the fact that our case was stayed actually pursue it was stay order that was issued by judge barbee before we even filed the case and then by subsequent orders we had no at the outset on the first complaint in normal practice if you give the plaintiff an opportunity to amanda and see if he can correct the deficiencies that's why we're premature here for this argument we should have been allowed our opportunity to a man there is the argument of saying futility based upon georgia law there was no finding based upon georgia law plus georgia law does not preclude the claims here and because our claims are property related the b p dealers have a property interest in their franchise agreements and at the end their their right to use their license to use the b p name and logo and that's what we have consistently said has been damaged in connection with so you heard the argument of sank from b p gallus on saying the facts are so intertwined but you didn't hear any on that conduct and the knowledge which arose after the explosion that's what there is a difference in nature of the claims that were done before so i want to thank you again for given the opportunity to speak will take these matters