me please the court counsel i'm patrick arns and i represent dr and mrs bowen this is an appeal in a defamation action that was dismissed on the pleadings under rule twelve because the district court concluded the publication does not refer to the plaintiffs to throw in this court reviews or rule twelve missile de novo and the issue on appeal is a narrow one under minnesota law under minnesota law a defendant need not identify the plaintiff by name to defame him rather a defamation claim can be stated on a publication that falsely and negatively refers to someone that is ascertainable here the highly unique facts of dr thought once tragedy make the quintessential fact question over ascertain ability improper for a real twelve dismissal and that is how the district on behalf of the full and we ask that the this court reversed and remand this case so it may proceed on the merits may address that issue in in a bit more detail the fundamental issue on tragedy whether it can be ascertainable about him now here minnesota law is unambiguous that a defense defamatory statement need not identify the plaintiff by name and you get that from audience in this case you know play with whether or not it's really aster to does it does it matter that it went to insurance professionals as opposed to going to group of medical professionals missiles or something that analysis no it doesn't your honor and let me address why first off again this is a rule twelve issue and two and the district court strayed from the pleading in the complaint to even address what the context was of this audio nd even if that finding and were to be correct you would still ignore the modern reality of the internet this article as shown on compare paragraph if the seven the complaint we can show that the author of this article published the statement on a social media page which again extend the reach of this defamatory publication far beyond just that twenty thousand which gives you all the law you need it's fifty doubt fifty damages are pursuing there's no obligation to prove actual harm and so this issue of whether anyone actually ascertained the article to be about the phon as a matter of identity is a question for the jury to be determined from the story as a whole and what we've seen and in many cases is this issue of whether the context of the story when it's not naming a plaintiff by name that's a classic example of something to be tried to the jury and here we're just on a rule twelve motion about plausibility but if you look at resume you look at kovi versus detroit lakes against lehman article about this tragedy is about the phone and given the highly unique facts that are played in the complaint that this is an upper middle aged midwestern doctor who suffered a traumatic knee injury lin mexico who was denied transfer by a particular company is just america that had his that resulted in his leg being amputated so unique that it certainly is plausible that someone could ascertain that this article was about ultimately the question for this court in that regard is whether it is so clearly not ascertainable that assist america's publication refers to the thought on this tragedy that this court should deny the phones the opportunity to even seek discovery and pursue their case on the merits the remaining issues that system erica raised as alternative grounds for a firm and who are not addressed by the district court they're not proper for rule twelve motion and this court should reverse in or manned and those issues can be addressed by the district court with the case on the merits i'll reserve the rest of my time thank you thank you m properly concluded that it was not plausible that a reader could understand the case study at issue in this case to refer to the thought ones where the claim might be conceivable ask pled appellants have not in the words of it is about defamation the issue though is reasonable inferences are appropriate not princess and to assess the state of claim for relief it must be possible on its face and a claim of facial plausibility when the plan a please factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged however the district court need not accept as true holy reallocations determining whether a complaint states a possible claim for relief will be a const context specific task that requires the reviewing court to draw on its judicial experience and common  which i propose the district court did here in making that determination the quote may consider the complaints matters of public record materials embraced by the complaints and the exhibits attached to the would understand the statement to be directed to plaintiff's counsel you would agree that under minnesota law the ascertain ability of the individual's normally question for the jury which would normally it would be a question for the jury but  the district court properly found here that it is not plausible that based upon the pleadings based upon the complaint and the attachments the materials embraced by the complaint rather that it was plausible under the circumstances so there is case law indicating that wary a large number of individuals could be the person or persons described that that that's not enough but here we the facts seem to point to only one person so why why isn't that plausible well the facts don't don't point to any person in particular and i think if we look at the rationale of of the district court the fact is the case study didn't mention the phones by name years i got a middle aged physician insured by this company that lost a leg as a result of zip you know that's a pretty small subset of folks who could be that person isn't the universe i'm sorry here when we look at ascertain ability and we look at schuster and all of the other cases that are in this universe it is possible based upon the it was a matter of light publicity the dispute and i remember living through that time it was the lead story in the star tribune and on talk radio and all of the other nightly newscast so it was possible for someone to hear the police chief in that case say the allegedly defamatory statements with regard to you know the tweeting question being a crime and immediately go to twitter or google and figure out exactly who that was here  that is not the case and let's talk for a moment about the international travel and health insurance journal there was a question to counsel with respect to the  relevance and appropriateness of the district court reviewing that that particular document as i stated before on materials that are embrace by the complaint are appropriate for the  consider for purposes of the rule motion in paragraph fifty seven of the complaint there is a hyperlink to the journal it self and that's not just a hyperlink to the case study but  hyperlink to the entire publication of the journal and  subheading on the cover page of that document if one were to follow the hyperlink from the complaint says this is essential reading for the travel and health insurance professionals so judge frank also considered the target audience of the publication and he did not have to infer one way or another what the target audience was because the document said precisely what it is essential reading for therefore it was appropriate for him review and use as a part of us no the district court to selectively view the evidence in the complaint of the phones didn't want the judge to consider the i t i j journal they could have left  conceded that was not asserted in the complaint but there was a discussion during argument with respect to a motion to amend i think it's important to note that there was never a motion to amend brought it was mentioned in an opposition pleading at the district court level and there is case law in this district with respect to under rule fifteen and under rule seven the motion must be done in writing state the grounds and contain the substance of motion and there is ample authority out there where the substance of the of the amendment being unknown is sufficient to not consider a proper motion  unless the panel has other questions we would request the order of the district court be affirmed as the allegations in the complaint don't rise to the level of possibility so you know questions thank you thank you and i want to apologize for mispronouncing your name ridgeley i think your honor what's interesting about the argument that a system erica made and made at the district court has counsel said the facts don't point to any particular person referring to the article but their defense of this case and one of their alternative grounds for relief is that the article truthfully refers to the phone situation and i submit your honor so they can't have it both way both ways they can't have it that this article does not clearly refer to the photo and when the samples are the universe is one which i would agree with and then also say everything we said about the phone this is true why not why not if in fact it identifies the phone which makes we completely alternative we can plead inconsistent theories at this point why can't you say that you know we don't think we have right data file but you know if that's true what we plan is absolutely true and so we have a defense an absolute defense well there's a difference i would say between pleading their argument is that truth is a defense and they're not liable for defaming the phones because everything about the phone situation is true and that the universe is one that this possibly could relate to they because here again we have a parallel proceeding and there is in fact a witness that has admitted it is about the one situation which is why we should move past the plausibility standard and get into the