below which dismissed a petition to vacate an arbitration award with prejudice because one the court misapplied pleading standards to dismiss the petition to vacate best based on an alleged insufficient diversity jurisdiction pleading into the court below ignored into carbon in myriad cases following it when the court granted dismissed the petition to vacate for untimely service beyond three months which is a misapplication of a statute to contemplated by the f a a now i'm prepared to just both those issues but was with the court's permission or was acceptable was going to start with the timeliness issue the court below erred as i mentioned before because it clearly ignored into carbon and the court below applied nine u s c twelve to a foreign responded as if it was a clear cut choice to be made in this particular case respectfully the court should have considered the factors st addressed in southern district opinion into carbon nine hundred and ninety three which has been cited leukemia by courts since then which looks at the unique circumstances of arbitration fairness no notice particularly where in the case like this there's clear cut jurisdiction over a pardon i'm going to jump in a little bit ahead of the six minute mark and i apologize for that you talk a lot about interpreting but it's a district court opinion right it's not binding on us the one hundred percent your honor that if that is correct and we perhaps focus our attention to the extent you think that there is the binding precedent that of the supreme court of this core that would actually potentially constrain or guide our decision we understand certainly that it to carbon may perhaps be persuasive and that's fine but could you just lead by telling us what are the boundaries of precedent as aside from you know where you'd like us to go but one of the guy posts that by stings that bombed us well i would say your honor i've used we've not found anything within this circuit north the supreme court level to the extent you're asking dealing with this express issue the only circuit court that we've seen that it's address  but i think it's something like florists is that how we pronounce it the nd circuit decision which is a little bit different from some time ago but it seems to suggest a three month deadline in section twelve is binding and i think there was language to the effect that there is no common law exception that this is a creature of statute and therefore we are not to applying a common law exceptions so would you just address floor safe and how that in your view why it applies why it doesn't apply not relevant argue that it's doesn't apply it's not relevant because it didn't deal with a foreign respondent it dealt with all of the cases that are cited by the court below as well as by the respondents here deal with precedent that deal with the very narrow circle of this to specific circumstance of a domestic service on a domestic party and so statement that we made two reasons your honor number one because the statute itself doesn't speak to service on a foreign respondent only speaks to service within a district whether the district in the court sitting or district within the united district you know it within the united states and fact that statute itself also still contemplates u s marshal service so it is it is somewhat out of date was there to make sure i understand your argument right you're suggesting that because the service of process method part of well could not apply in any conceivable world to a foreign respond in then the whole section twelve itself goes out the window in other words the three month deadline also goes completely out the window when you have a firm response that all of section twelve by definition is now in a plausible your honor the argument the position or take is that what needs to be taken to account of the facts of the particular case to looking at what the foreign service cells let's work help me with the statutory construction argument st though because again if you have section twelve by understand your argument that two sentences about method or process don't apply in i thought you were then arguing that if those like the st sentence similarly does at minimum notice within within the time period or is close to the time period that set a force in the statute as a as a as a guideline in fact if you look at the cases that apply the concepts found in into carbon clinging to carbon itself there is at least notice within the timeframe contemplated by the statute so it would suggest throwing the whole structure that you're suggesting that the st sentence of section twelve does textu apply to foreign respondents because it says that notice must be provided with and ninety days well it's within three months but it's also well it did make a difference and it's it makes a difference in this particular case but the no the argument your honor is that the the the statute speaks of notice service of notice of a motion of notice of motion would be made within a three month time period when i'm stating instead is that literally speaking not statute that sentence cannot apply to a foreign respondent because where you present me if they convention service it's impossible it's in three months it's just literally is  possible when the facts of this case demonstrates that as well so the argument that we would make is that if the statute needs to be given at least guidance it doesn't address the foreign respondent but rather than ignoring its entire text and say well there's no rules that apply to a foreign respondent we would argue that if you look at the the fairness concept that is addressed in enter carbon the reasonable is of notice the lack of prejudice one could still determine whether or not they  purposes i guess i'm having trouble then understanding it so you're saying that we should apply i guess for back like a better word the spirit of this that you that you're saying that because the words of the statute cannot be a right that's correct why should a court be tolerant of your difficulty in serving when you wait until the last day to file the action and note that it came up in a different circumstance the we filed the action the court issued an order that the same day directing that service be made within twenty one dollars days so it was already directing service be made outside of this three month time period we noted back to the court that in this case since we had foreign respondents there wasn't it was not possible to serve within twenty one dollars days that we would need additional time because of the hague convention which eventually we got we could not meet the hague convention service in twenty one days but again i want to emphasize we were already beyond the three months time period when the court was in our view operating consistent with intercourse because it was not a discussion about whether or not we needed that time in order to meet the three month time period it was talking about separate something separate and i asked a question you make a number of assertions throughout your brief that the amount of time it took you that one cannot serve notice through the hague convention within three months and as far as i can tell you seem to say because it took us four months it could not have happened faster  i was trying to look through the record and it looked like a number of the defendants were served on july th and a number later in july what wasn't clear to me was when you transmitted t the central authorities of germany in luxembourg the request for service i said i don't recall i can tell you it was in it was by the end of may because if you look there is an order by the court that permitted i think it's on may twenty two to trink the number of documents that needed to be translated so therefore went out promptly there after the when i last question then is was most of the time then eaten up by translation and if so you know i mean after this is perhaps getting more into the weeds and i need to but it is a subject of some curiosity to me you know after service was affected for example on july  way i understand it the service was affected of different parts parts of july in germany in luxembourg but at that point all that does is done the proof of it goes back to the central authority the central authority then prepares the papers that that basically port that the service has been completed and those papers then need to be translated they were sent back to us and they were filed so yes they may have been that a delivery was made in july in germany we didn't get the papers back to file on the docket judge walker is whether under the facts a foreign respondent is given proper notice and is already subject to clear jurisdiction is not subject to prejudice there's been no effort to delay by the party who's the moving party and the criteria that you just outlined a prompt due diligence an effort on your part well but by providing the notice to them once in the three month time period provided in the statute i mean can we had a thirty three  provided notice at the end of the three month period right the last day that's correct and it was it was after business hours so there's no way that service could have been could have been complied with even if it had been domestic proceed to prepare the papers to pull the trigger to go ahead and do this yes candidly if what you're suggesting is could we even advance saying look we're planning on making a motion will you accept service we didn't do that but realistically that's the process that took us to of the last day of the period that he is it appears again from what you filed on the record that service was effectuated within about two months now took longer for you to get that proof of service back but if the latest i think was it's a like th service and a lot of those folks were served time salons affects so it looks like actually the hague convention is not quite as dramatic as you make it out to be in the sense of always and everywhere taking longer than three months it looks like in every instance service took less than three months now it took longer for you to get paperwork back and get it filed and prove to the satisfaction of the court that you did meet the three month deadline it looks like you did made didn't and the process even under the hague convention even before i was getting the paperwork back the paper got to go back to the central authority the central authority then prepares its report which then gets sent so right my point being that later and maybe it would have taken until september that you could have said to the district court ok now i have proof that i served notice of this within three months but can i go back to a completely different issue and i know we're  keeping you on your time and i apologize and i appreciate the opportunity which is the diversity allegations and yes it took you a long time or your party i don't know but you it certainly took i have to say that when i read that i'm not sure what milburgh means that they are or maybe some of them are and some of them were or some of the partners or other partners and it seems like that w i mean this isn't this i come from a criminal background so i don't know how easy or hard it is to allege diversity but i would have thought this is pretty easy you say at the time we filed the partners were n b a was a citizen of new york b was the argument i have with regard to the district court's interpretation is that what rather putting aside whether the appropriate pleading standard is this motion standard or pleading standard to the court in this particular case would leave read a negative inference that it wasn't clear you have personal knowledge and so i guess what serious is on the rd try why didn't you just talk to the partners submit something as to their residency the simple answer is your honor i'm know prior chances q i can clarify actually the case actually in involved what was explained in the opinion to be blurry photo copies of licenses and other things which caused it's not been pledged to the clarity that the court has asked for nonetheless it is there's not been any basis to doubt that that we can create jurisdiction the question is announcing it clearly enough in it because under those courts in the standards and fifty three because jurisdiction has always existed sum up the arguments on this appeal what you know is i think we could say that it's too little too late and unprecedented and i'll start with too little and all and i'll begin with diversity since that is where we left off the st petition here was filed on may sex and the last attempt to cure that petition happened over six months later by the declaration of michael spencer in december so there was a six month period in that six month period the st bit to diversity and federal question the district court the very next day sue a spot day said you're going to have to give me more on diversity among other things or i'm going to dismiss this plea and so i may not and they came back and they filed this nd petition and in that petition milburgh alleged that it was a partnership of one with the citizenship in new york partnership of one is not a valid partnership under section ten of new york's partnership law and so then on october th after they're done some various communications from strict court they came back and they said well we actually are have two partners who were or are citizens at all relevant times and then on the dismissal motion mr spencer who only claimed to be fully familiar with the workings of milburgh and the citizenship of its partners submitted his affidavit rather that his declaration rather than milburgh submitting a declaration for example of the partners who had actual knowledge of when they were citizens of new york at the time of the commencement of the petition but let me ask you counsel pleadings of diversity like pleadings of the claim only have to be two partners were or are united states citizens of the time of the at the relevant time which we assume the relevant time is the filing why is that  this is the cleaving why is it plausible that that therefore he satisfied diversity jurisdiction because when we look at this particular declaration and i will say i will say this your honor for that for for argument's sake i've been a partner at my firm for most twenty years so i've got lots of different partners and i can't tell you that i know what the citizenship is mr spencer when he put in his declaration instead of saying i know he just said i'm familiar because i've been involved with these people and i know them that's not enough to even come especially after six months to record them and especially one other point after the district court six months earlier said you've got to allege the citizenship of milburgh in its entirety so milburgh was told exactly what it had to do six months earlier and on its th effort it comes back with a declaration by somebody who doesn't say he and so they were or are citizens the district court properly after a six month period of asking millbrook to get it right and it's not difficult to get it right any pleading diversity of a limited partnership means you plead the citizenship of each partner and in fact the district court told them to do that on may th when you factor all of that in and you look at the months that passed and the new prius attempts and moreover your honor remember that they started off claiming that was diversity in federal question dropped federal question then they said they had one partner and they said they had two partners who are or are citizens of the state the district court wanted more after six months given the vagaries of the pleadings that had come before given the differences in the different statements that had come before and this exploration typically a declaration right would be by somebody having knowledge this declaration on a motion it wasn't the petition itself it was in opposition to the dismissal motion was a declaration not on personal knowledge and it would have been simple for them to put in clear ations by the people that had personal knowledge or that knew or even somebody that could say i know because i'm his next door neighbor but none of that is there and if so can i can i just say if we had any marginal qualms about the subject matter jurisdiction allegations but if we were to ask mr de hill on his rebuttal to just repeat what he said in the blue grief which is look you know we got these two partners at the time of the filing of session they were citizens of the united states if we were to exercise their discretion you would agree that we would be allowed to allow them to make a filing supplemental here on appeal and i could clear it all up right i would i would never have that it would discretion you may not want us to exercise the discretion but you would agree that we have the power to do that right i would never attempt to limit this court's power but i would say is that if a court were going said it earlier on and you talked about where you are coming from a criminal background you know but it seems fairly easy it is fairly easy and that's why the district court the day after they filed the st petition said hey look you have to allege the to exercise that power the court has to exercise that discretion the court under the cases under six hundred and fifty three dollars would be looking for extenuating circumstances that would say well we're going to go out of our way here to allow this to be rectified those circumstances don't exist here but i ask you because you only have a couple of minutes left you would you mind spending a little time on the question of titling ness and let me just close question to you defense to a motion to confirm an arbitration decision right there d are lots of cases protect me from the supreme court since then saying that we presume this is the supreme court presumes that when congressman access statute of limitations does go against the background that equitable tolling will apply unless congress affirmatively says something to the contrary to make  that it doesn't so i guess what i'm wondering is given that flora sites seem to be dealing with particular issue which was what's the deadline for raising a defense against confirmation is that language  about no common law has tensions really dicked and would we be obliged to then follow the supreme court's pretty consistent rulings that equitable tolling applies unless congress speaks clearly a is a holding itself up about the statute saying look the whole idea of petitioning to vacate in a war is a creature of statute that's what it is that's why there is no common law exception to it and that is why this court in forest specifically said there is no common law exception to the three month limitation period and that is and then of course i am glenn and treat triumph in the other cases in different fact patterns have discussed section twelve as being strictly construed and not subject to equitable tolling and even absolute and that is of course what the case says i think that it is not kicked that is how section twelve is deemed to be because it's merely a creature of statute and not a creature of a common law i think you're right i think there's something in the record though that i want to address it isn't that they actually went ahead in this case even if even if the court were to assume that it should it should apply some equitable deference in certain instances and it to section twelve which is not thus far the law in the circuit at all with no exceptions there are none thus far but even if the court were going to do that this wouldn't be the case not merely because they serve the russians say not because they served the petition on the last day of the three months they actually served it on the day after the last day of the three months because rule six under under anglin for example says that you actually start the counting on the date of delivery so the last day would have been may th not be six when they served the petition but even if you were going to assume again so now  should apply and now soon it's may th and not may th well as your honor and as the court pointed out earlier there was no reason knowledge in this instance why they couldn't get the service done your honor pointed out that the appeared to have affected service under the hague convention by july in fact they st were able to do it on june th and they st told the court that they were considering hague service and may th that's long past even their view of when the last day got on february th so there will be on do they if they were considering it on me th and they did the st service by june th it's hard to imagine an argument that hague service within three months would have been impossible it also defies credulity is that if you really thought that big an application to the court early on a dual four and see if there's some substitute service that the court would allow nothing happen at the very best as the district court said at the latest nothing happened until may th we say that's one day too late under those cases that we've cited but even if it is it they waited until nine fifty three in the evening on ask if we would accept service it there can be no question that they didn't start drafting the petition on may th so at some point they could have reached out to us they could've attempted service they could have gone to the port they could have done something and frankly they pleading after four attempts over six months after it was warned basically on day one afterward file that the court would dismiss the petition if they didn't get it right and there's no reason to go ahead and apply equitable tolling to section twelve where they overwhelming indulgence equity is based on fairness and equity certainly shouldn't be based on a willingness to be blind to a party's requirements that it failed to it here to time and time and time again over months that is i hope that it is your question ok that's thank you very much and we appreciate that mr de hell i believe that you have reserved two minutes for r this but if the court were to decide that we wanted to give you one opportunity before us to amend your subject matter jurisdiction your diversity allegations would you be prepared to send us something in i'm going to make this happen within a week that contained at st person at the partners who were partners at the time of the filing of the petition  we are the two partners who were the partners at the time and we are citizens of you know whatever oklahoma i know is that you're on a sort of thing that you one hundred percent absolutely your honor you know we would undertake that the only reason i can speak to timing is because i don't know where people are but we would make that effort and we don't see why that couldn't be done and would appreciate that opportunity to address  you know the circumstances one you know thing i know with regard to you know mr i was slander and talking on the jurisdictional point you know i can understand the kind of expressing an idea of the court perhaps was fed up but i don't know that being fed up as such is enough to distinguish a right that i think there's never been a bona fide question as to whether there is in fact diversity here and can and counsels never said differently in an opportunity to provide additional support directly dealing of extension of the statue of limitations actually is not really the way in which the cases that we've relied upon focus on it what they talk about is they do use the word fairness which of course is an equitable principle but that the terminology that uses honor we would i would my response would be that we had a thirty three dollars page opinion we have determinations tomatoes whether to move or to appeal the basis upon which and under no circumstances could it be suggested quite candidly that all of that can be done and do hague convention service within the time period of three months it's just it's just not feasible i do know by the way that the june th service was done outside the hague because it was a party in lichtenstein it wasn't under the hague convention as one of the many parties but but  provided within three months the notice that we are moving to vacate this and that the fact of whether or not it needs to be translated and we have to go through the hoops to try to serve this shouldn't be held against you know given the fact that the three months in the statute doesn't reasonably apply to a foreign respondent is that the answer is that the it was an equitable would be for the respondent here again having participated agree to jurisdiction in new york participate in arbitration new york then saying well you are unable to serve very much like a very helpful arguments and we appreciate your patience with these technical challenges we will take the case of your advice