there was a collision at the intersection of rule twelve b six and rule fifty six and superior offshore international's now i trust climb got total but its claim should not have been in that intersection on that day or at that time cleared to do commence discovery and didn't do that did you your honor we did not but that isn't how these cases work the defendants immediately filed a motion to dismiss and as it turned out to be the case later on even after the district court had allowed us to another comply and we sought additional discovery that was denied we had been limited to discovery related to one telephone call and we s well in this case the district court allowed us to amend the complaint and in doing so he had to use the exact same standard in order to determine whether it was futile that he would have had to use initially so we were under the family standard from the from the beginning of the case and also when we moved from then the complaint so once we had overcome that hurdle we believe that because of the plausibility of the garden variety price fixing conspiracy alleged in the compliant that we should have been allowed full discover here we think that the facts show a extremely plausible conspiracy and the addition of mr tuttle's testimony we think just pushed us farther down the road to being able to prove it the trial is our standard of review rather limited on your discovery issue well your honor generally it is although this court has said when the evidence is in the hands of the movement that will fifty sixty motions or granted almost as a matter of course so under this court's jurisprudence i believe that there is less discretion in a situation like this where many courts have pointed out that the conspiracy cases the evidence is almost always in the hands of the conspirators it wasn't something we could get publicly so in this case i think that this records discretion was more limited than usual but we still have to determine that the court abused the discretion that they broad aren't they well i don't believe so your honor the they don't have any hind geographic there's a limitation on well that the complaint is from two thousand and one to two thousand and five that's the proposed class period in the case and we certainly i believe were seeking discovery during that time period so there was a a temporal limitation but in these types of cases because we didn't have any information other than or information about direct evidence of a conspiracy other than mr totals testimony about what mr graves said we had to be somewhat general however the types of things that we would get are for example internal documents discussing the price increases these were unprecedented price increases during the first half of two thousand and one it had flat pricing for over a decade according to the largest operator if we don't find that there was direct evidence of concerted action can you point to the say you have them plus factors you think exist here well the plus factors here i think you look at the market structure the market products were substitute or the services here are substitutable and that after a period of stable pricing over a decade according to the largest operator they had an unprecedented price increase of thirty percent  listing character of the market and the the therefore the interdependence really hurt you in terms of what the what we might normally think of as competitive behavior whether a few entrance there are few you know participants in the market i mean under under economic or and interest theory it's not the kind of market where you would necessarily in for an agreement by virtue of parallel behavior in fact parallel behavior would be a normal reaction interdependence is certainly something that the district court hung a time out on that you didn't believe when you as we say looked at each each part of our proof or our allegations in the complaint he concluded although we will be it incorrectly after compartmentalizing or proof that this was only interdependency we haven't shown anything else but here i think that that for example the southern circuit in the text message and kiss the structure of the market according to ph i of stable pricing they had a thirty percent price increase they all did yeah but the the fact that they had that the first one did it and there's a distinction the first one did it ok we don't know why the fact that others follow exactly these types of factors and concluded that the district judge was was correct in not dismissing on under compliant so although interdependence is a factor that needs to be looked at i think that the allegations in the original complaint very complex structure in in text messaging and a rapid increase in the facts are different in terms of how well the facts are different your honor but the underlying economic principles i think are the same and can be applied to different factual circumstances such as a three operator more part of the gulf of mexico for interchangeable helicopter services oh what we believe the district court should have done is granted r fifty sixty motion and allowed us to pursue full discovery here before dismissing the canal why didn't you narrow your discovery request somewhat before the february tenth deadline well that's how to make it more in line with what you really needed well we believe that the discovery ques were appropriate although i know there's a suggestion by the defendants that encouraged us to do so i think i don't remember that we thought the discovery cus were appropriate we were operating from a position where we didn't really have anything that we thought we c narrow it any more than we already had at that time again i think what we know we don't ask for particular documents or for example did you budget for price increases that's open that you did how in their internal memoranda about how you reacted when the first one raised its prices things like that we did we didn't think it was necessary under the discovery scheme one of the federal stuff asked for for example particular documents and dismissing the plaintiff's complaint you know what i'd like to explain in our briefs why the district court's opinion should be affirmed so i want to focus today on the questions that the panel has been asking my opposing counsel because bottom line the plaintiff's entire argument to reverse to the district court's order is based on the following if the amended complaint that they filed is sufficient under trombley then they get full discovery as a typical defendant i would call that blunderbuss discovery but full discovery of the words they use and because they didn't get full discovery the grant of summary judgment was inappropriate because it was premature they didn't have enough  to rebut the showing that the defendants made what we think that the amended complaint i mean the original complaint is this pretty strong in terms of what it well why shouldn't we not say that you know this is enough to get you to the point where you can have some discovery well your honor number one that's exactly what the district court judge did in going back to what did the plaintiffs have to show when what has the supreme court in this court said is in the context of a conscious parallelism antitrust case what what does the plaintiff have to show to get to pa interdependent conduct and the key you have to show contract combination and conspiracy you've got to show that concerted activity and to section one and indeed what the judge did in the district court and what he said and i'm quoting from his the third circuit precedent in a highly concentrated interdependent oh look up a list of market such as that alleged here quote evidence implying a traditional conspiracy becomes talking about communications between all of the all the individuals isn't that fair your honor could that be indicative of some agreement it could be but it was never when we look at what's happened in this case they came in within him an original complaint that the district court said didn't get them to the plausibility line under trombley all they had was interdependent contact economic data they had articles they had publicly available information they come back with three paragraphs setting out that they have evidence or they allege they have evidence based on this confidential witness of an actual price fixing conversational to get only one side of it so the judge in determining to let them file the amended complaint still you know never uses the word plausible but many of it says you know i may be skeptical but the supreme court said even if you're skeptical that's not enough judge if it's plausible you've got to give them a shot and that's what he does no way or in trumpet does the supreme court say well if you pass twelve the six you get full discovery indeed with digital thing it read their past trombley you get full discovery they say no district court indeed you should exercise your inherent powers to control the discovery process and that's exactly what this district court did he said the one thing in your complaint that gets your pay asked possibility to approach plausibility is you're talking about that that plus factor that this third circuit that his court talks about quote non economic evidence that there was an actual manifest agreement not to compete which may include proof that the defendants got together and exchanged assurances of common action or otherwise adopted a common plan even though no meetings conversation or exists or exchange documents are shown and that's exactly what he does he says you've got these invited to fight certain people in this paragraphs you buy ten to fight all of this go out and take those depositions and see what happens if you want more discovery let me know and sure enough the defendants sorry the plaintiffs submitted a letter pursuant to the order which i dare say if you look at that letter it was right so the court knew that the additional material was going to be the total allegations about the graves phone call absolutely and in fact when you look at the motion that was filed by the plaintiffs they explained to the court that the only difference between the original complaint in the one they filed was the quote these three paragraphs which was the newly found evidence they had which evidence they believed a price  fixing communication again trying to get to that last factor that there was something there and the judge they authorized depositions and in fact authorized for deposition facility after that you're saying essentially that we need to take the context in which that order was entered on discovery in two count we determine whether or not the court of use is scratched absolutely right and then when you look your honor at what the discovery record revealed all that we have seen when we go through the total deposition what is his his deposition testimony show us total testified he didn't know who the person was that graves was talking to he didn't hear or know what the other person was saying to braves he didn't recall any words or phrases from the conversation and even though he told plaintiff's counsel that he thought schubert on the other end of the phone talking to graves he later quote realized that she that she was no longer at a competitor so that allegation which was in the in the amended complaint and surface again a detail of fact that turned out to be not true and again even though tuttle told plaintiff's counsel that he overheard graves say that the company his company's president jim clement had authorized a price fixing agreement between the company and others he quote was mistaken because jim wasn't there as president of the company where graves was at and so that allegations total escapade hurt more than helped you say your honor they had an opportunity plus they had more than that they had an opportunity to depose graves and in the judge's opinion when gran discovery he specifically says take these depositions and it may enable you to figure out plaintiff who graves was talking to one would think that could be a question that was could be  depositions and stood still even when they had more discovery time and the court order clearly indicated that in setting out the schedule that at a certain point in time defendants could move against the complaint after the discovery the judge said he could come back to me after the four depositions they knew what was happening but they did nothing they stood still put aside as the quarter did inquired before that they did nothing from the time they filed the original complaint to the court ruled denying the mode of sorry granting our motion to dismiss so you're saying the discovery during that time period was not necessarily limited to to they had the ability to proceed with more depositions absolutely every but did not they did not your honor because it here when you have the total deposition so total is now would meeting in case they didn't know before the clearly on the record he had no he was wrong and no longer does he know who graves was talking to and one of the specific lines in the judge's opinion in permitting the amended complaint to a to go forward crazy so again there were opportunities plus as we made clear when we opposed the letter that the plaintiffs submitted to the judge before the depositions took place outlining what kind of  wanted we said let them take some depositions they can always come back you can go back if you show something we understand that but they never did they took the two depositions and stood still waiting for us to make the motion not a surprise the judge tells us when we are allowed to make the motion we make the motion not you know we like to think we're brilliant but given the record here we thought this was fairly obvious what was going to happen they certainly come back and say well no now we need discovery and that was not mine points are very broad but most importantly perhaps is that they never link any of that so what the critical issue is for the judge to defeat our summary judgment motion that there's no evidence of a contract combination and conspiracy they say instead they need all of this stuff they need to understand the marketplace th understand the economics but little if any and they and they never take this position in response to your question your honor they never say no we just need this because this may get us exactly to that plus factor that this court keeps telling the district courts you've got to look at when you're looking at a parallel conduct if you can't show a section you can't show contract combination conspiracy i think you know it's axiomatic if they're copper well you can't you can't show a section one violation and they have no evidence in the record the fact notwithstanding the characterizations by clever reposing counsel total just has feelings about what went on now feelings are appropriate and right in a lot of places but when you're trying to be summary judgment you need fact both feelings and facts start with an f but they're not the same and that's all they had here as that was then before the court which included the depositions and the allegations in the complaint both complaints original was that there was no evidence of the assent an essential element of the section one case that they pled concerted activity i mean i can see i can see almost have an easier task twelve b six  proof you need facts and they had none to establish that there was any conspiracy among any or all of the three defendants in this case they had nothing but i guess that takes you back to the their they can't figure if if they don't know who graves was talking to during this process maybe they can find out but those would be that's call them in on economic progress but you do have the economic questions you there are snippets from you know one article where nobody knew who said what whatever just doesn't get to be able to conclude or infer the critical element of section one or the result of some conspiracy among the defendants you don't know and you can infer from the fact that there was quote unprecedented price increases that one guy moves and then some other two guys move you can infer a conspiracy from that because interdependent conduct unilaterally done could show the same thing in the world the only way you can figure out if that product that conduct you're seeing violates antitrust laws is if you have some facts from which a court feels comfortable to infer that there was a conspiracy here and there was none although the plaintiffs have the opportunity to get discovery they had discovery they didn't even fleet that discovery they could have you know gone back if they thought that these depositions showed something they never went back they didn't finish before they sat back and it and to defeat summary judgment came up with an even longer broader list of what they needed all going back again to the earth theme once they had passed promptly they need full discovery before summary judgment can be granted you and i assume that  filing of the amended to understand that you filed opposition right and we did not when the judge granted the motion just let me state it because i think this is response to write us when the judge granted the motion to amend we did not move to dismiss that your honour's all defend not only mr tunnels on her but all arse far from the description and you have an opportunity to read the transcripts but south far from feelings mr graves said for example that he understood pardon mr tunnel heard mr graves talking to who he said it was mr tunnel testified that he knew at the time was someone from p h r although he couldn't remember who it between his superior who was responsible for selling the helicopter services and pricing in the gulf of mexico with someone he knew was a competitor how did he know the person was from ph well he didn't say and they didn't ask ah well again it was a long time ago well ten years ago about that he had been in this business for years and he had heard mr graves talking to people at ph i many times in the past he said of two thousand and one and in fact the judge's order from this is a j one fifty seven after the back and forth between planets in the fence about additional discovery i don't to the scope of all permitted that position shall be strictly limited to the allegations set forth in play have so many complaints paragraphs thirty to thirty two three document discovery at this time is not warranted and judge fisher i think you've hit the nail on the head followed the procedure that the judge has set up again this was a situation where we think that initially the judge should have allowed us all discovery all of the principle and i there that was more targeted than you i don't think we could have after the and then a complaint was filed because we had gone through the procedure that the district court had set up and we had been denied a request for documents and we had been denied any other discovery other than related to the four individuals mentioned honester total during the circumscribed period of time for six months in two thousand and one