honour's there is no diversity jurisdiction here the court below suspected as much when it ordered supplemental briefing and whether the party should be a lot realigned to determine whether diversity jurisdiction actually existed in particular the court asked the parties to brief the question of what would constitute a collision adventurous under this court's realignment standard and asked sagi to state whether he had any good faith arguments to oppose the lie the lie is claims and response sagi admitted that he had quote unquote no viable defenses to dalia's claims but he nonetheless insisted that the collision  test was satisfied merely because he was refusing to pay ghalia absent a court order in its decision the court below recognized what was obvious that soggy and dalia had coordinated the action against or saga had conceded that dolly's claims against him were valid and enforceable however the court below nonetheless agreed that soggy smear refusal to pay was sufficient to constitute a collision  honour's respectfully that's wrong the decision below has the effect of eliminating the court's obligation to look beyond the pleadings to realizing the party's according to their true interests under the supreme court's decision in the indianapolis vs chess case and under this court's decision in maryland casualty versus w r grace under the lower court's decision coordinating parties  manufacture diversity jurisdiction precisely the result that those cases prohibit by doing exactly what was done here which is simply to say i'm not going to pay here your honour's the facts  against orly on the same day literally within an hour or two of each other even before orally was informed of the six million dollars demand against or soggy offered no resistance whatsoever judgment motion instead he submitted a four sentence opposition in which she admitted that he didn't have any valid defense in order to have a final judgment entered quickly against or so that soggy could undertake efforts to enforce it dalia cooperated with soggy in dismissing her remaining declaratory judgment claim without prejudice even though that claim s declaration that soggy owed her twenty five million dollars your honors there's no doubt that ciggy and value were aligned against or only here just to save been aligned against orly and family disputes and litigation going back for fifteen years saga's control of his mother or in orchestrating this dispute is in orchestrating these fights is also not in dispute the record is clear that value puts put sagi in charge of all her business affairs and that she she doesn't intervene in anything he does because she trusts him and further that she that he has secreted offshore millions and billions of dollars in accounts on her behalf so so your on her psyche and value need to be realigned on their own side against orally in this dispute and then there can't be any diversity with respect to orly because there is no genuine material dispute that orley was domiciled in israel in october two thousand and seventeen when this there for him was not any suit a citizen of any state when this action was file orally got married in israel in two thousand and sixteen in the fall and shortly thereafter she moved to israel where she's lived and been down with cyle before during and after the commencement of the section now psyche argues that contacts that orley has in texas mean that she's domiciled there but it's not at all unusual for anyone to have contacts in multiple jurisdictions these days in fact soggy himself has contacts in new york connecticut and florida and if there's any doubt about the location of or at least domicile at the time of the commencement of this action then the appropriate thing is to have discovery on this issue and to remand this matter for a fact finding not to grant a previous answer motion for summary judgment even before the answer was filed now if the case is not reversed or remanded on jurisdictional grounds the decision below should nonetheless be be reversed because there are material issues of fact that preclude summary judgment and cities favor in particular there is absolutely nothing in the record showing that or only ever received any amount of money attributable to the t r i shares this issue is critical because the agreement on which psyches claim against orally is base limits liability to the money that she had received attributable to the t r i shares the court below apparently assumed inside he argues that this issue was the scientists in the prior two thousand and fourteen action and values two hundred thousand dollars demand but that's not the case the issue was neither raised nor decided in that prior case in fact this court in its st decision explicitly held that while or lee had received consideration for the letter agreement it was decided only whether she had received more than a peppercorn it specifically and explicitly was not making any determination whatsoever on whether she had received money attributable to the t r i shares or  receiving any money and there is no evidence that she did on the other hand there is lots of evidence that others received money and in fact just yesterday your honour's entities controlled by siggy and by dalia filed an action in the southern district of new york where they allege and admit that none of the settlement proceeds relating to the t r i stock went to orally they did that yesterday and we'd be prepared to make court is specifically held has not been decided that needs to be decided through discovery and through a fact finding and that's why this decision which was reached in a you know before there any discovery whatsoever needs to be reversed the other issue of fact that's never been resolved and needs to be is whether dalia's demand for six million dollars is otherwise permissible under the agreement the agreements very for the purpose of lifestyle rather than for another purpose it's both an employer a breach of them an implied it not a not a breach it's to determine whether or not it's an propre under an implied condition but also under the explicit condition that the agreement has that money can only be requested for say for lifestyle purposes and the argument that that that he makes that she has total discretion that that begs the point she has discretion to make a determination about lifestyle expenditures but only if their life style expenditures they are limited by by being life expenditures and in this instance there's very very significant evidence for the proposition that this was not for lifestyle purposes your honour's there was there was five years ago there was a two hundred thousand dollars request then all of a sudden there's a a six million dollar  an extraordinary argument that they can't cite any case which is ever done i'm speaking of diversity jurisdiction basically they're saying that orally is an israeli domicile which will show she's not that as a rd party defend then she should be realigned into the main action and such a way is to kill diversity and as the court found in viacom this court found that viacom rd party defendants are not considered for purposes of diversity they just never are and there's no law to the contrary they don't cite any of the contrary it is controlling precedent in the circuit beyond that there's an issue here appellate jurisdiction which mr woods did not address we that correct that's exactly right but she did not do that that is the crux of what we're arguing here as required by the rancher before st pursuing her motion she had when when dalia moved for summary judgment at that stage if not earlier or early had an obligation to step in with any defenses that she thought was necessary i'm not sure where that is so clearly established i thought that she could not argue against his father but he still retains her right to say to sorry i can't i'm not liable to you because you colluded to make your honor in atlantic richfield the interstate oil transport which side in their brief this court ruled that if the and then the door declines to take over the defense the indemnity is required to prove only its potential liability to the plaintiff tend defense from the very beginning in fact the reason why we didn't pay one of the main reasons was because in the prior action orally you know this is our nd time before this court the prior time we were before this court or early with the same legal team mind declined to pay even though based on the nd circuit prior decision there was no there is no valid defense here nevertheless that creates a jurisdictional void and that's just wrong if orly wanted to defend the claim she had to step in and defend the claim there were seven months transpired between when the st lawsuit was filed and dalia moved for summary judgment during that time orally filed three motions to  she ducked service we served turner texas home she said not good enough we served her in her new jersey home she said not good enough she could only be sued in israel she said and she wouldn't give us the address we had to hire a private investigator to find some home in the name of a corporation registered to her sister in law so basically for seven months we tried to get her to step in and take the defense if that's what she wanted to do and she didn't do it the law is crystal clear that if i'm indemnified and are insured same concept and the insurer doesn't and in this case you can read their entire two previous there is not a single challenge to the actual indemnity nor can there be because this court found the indemnity to be valid last time around all they're saying is are challenges to how the st part action proceeded they did that's not in their notice of appeal nobody appealed it the st party action is final and there's nothing more to say about it now their whole theory is premised on the notion that we knew orly lives in israel and we were trying to create some strange procedural structure to avoid jurisdiction as nonsense she didn't even say she lived in israel to like five months into the case so or at least or at least claim is that she moved to israel for her marriage in september two thousand  well you know since then we've had some extraordinary post judgment discovery we found out that in a pre nup premarital agreement she committed to maintain her domicile that's the word she uses in texas and then after she got married she got a texas driver's license  texas voter registration card she got a half of a texas home which she declared as our homestead she still declares as her homestead on a property taxes when we went to when i when i deposed her post judgement i offered to go to tel aviv and she said no take my deposition in austin which was nice i appreciate it so oh and most importantly two weeks before we filed suit orly declared herself a texas residen to the i r s that's the beginning of the end of the story once that you do that and her tax returns where it says where's your home she lists austin texas it's something we got imposed judgment discovery but it's on the docket in the court card home everything else you're done you can't tell the iris one thing somebody else something else and so if you accept that orley is a texas resident then this whole rigamarole about realignment becomes irrelevant because what happens validity of dolly a six million dollar claim then she had to come in and defend if she wanted to sit on her heels and simply challenge of the three million dollars indemnity that arose from the six million dollars claim that she c judgement by urging error in the may case even what it does the rd party judgment is the only catch and it's appealing from your honor one more point if i may there quickly the only thing they're arguing here is  good faith defense which this panel directly rejected the last time around two hundred thousand dollars not as to six million dollars understood your honor but the principle is the same their sole and absolute discretion there may be no basis to think that two hundred thousand dollars lifestyle claim was not in good faith but a six million dollars claim what nothing anywhere close to that has ever been sought may warrant some discover your honor that's we believe the case law is clear that when you put in sole and absolute discretion that's what it means it's all an absolute discretion in no time limit have all contracts have an implied covenant of good faith and fair dealing the purpose of the implied covenant is to make sure that the purpose of the underlying contract is in force not to make sure that it's they're using here to undermine it to say dalia doesn't get her financial support because they think she doesn't need all that money was cited then as now which is that when there is sole and absolute discretion what that means is you don't use the implied covenant of good faith and fair dealing to undermine that discretion that's why parties put that in the contract for dalia to determine whether you know what she needs to survive now she did put out the david where she explained that she's been read she got divorced in two thousand and four she hasn't gotten any alimony since then she used to live a very nice life when she was the wife of a o and she only has a house with two mortgages on it she put in an affidavit they didn't rebut it they were seven months into the case to do whatever they wanted to do and we were at summary judgment and summary judgment you have to be more specific than just say well there could be about five claim out n defeat summary judgment if you take discovery you can't just make blanket statements about whatever the needs for lifestyle the issue is whether or not the funds are being demanded for purposes of a lifestyle or for another purpose namely collaborating with  y to to try to would do damage to the orly so it's not it's not a it has nothing to do with whether how she's spending money on her lifestyle it has a good faith application as to whether or not it's been used even for lifestyle purposes in the st instance as to the issue of indemnity and then that or it's just not an issue was an issue in this case the question of your honor is correct that  right but not the right argue the right but not the obligation your honor and in fact that was never that's not even an issue in the court below that was never dressed in judge forces decision whatsoever so this is a look i  instance that there were issues of fact as to good faith that there were issues of fact as to the realignment of the parties and the like and that and that we submit exactly what the what is what is required here