may place the court counsel charlie wiggins here with him all around from pensacola representing the andersen plaintiffs in this case this case arises out of the dismissal of course of forty seven plaintiffs complaints for products liability in a situation and which the plaintiffs had already comply with the required filing they had already filed the severed complaints by the time the court ruled the only issue here was a delay of two to three months after the court established deadline and there had been no warning in the c m of those that the individual separate complaints might be dismissed i mean these circumstances and i think it's important to rick to put that case in context and the context is that of all remained of course and under remain and it's the defendants who have the burden of proving that there is  diversity jurisdiction in federal court and doubtful cases start to be decided in favor of the plaintiffs and the issue is to be decided at the time the file the complaint was filed now when you look at it in that light and you look at mississippi law and in this case adequate claims were pled against the mississippi retailers and i want to talk about the three phases if you will of the mississippi law be original nine hundred ninety three statute provided that the there was light there could be a liability if the manufacturer or seller knew or should have known the dangerous condition of the product and we've pointed out in our brief that there are good reasons to interpret that or in the disjunctive if either the manufacturer of the seller knew and then there can be liability now the situation changed in two thousand and two with a statute subsequently  suggesting that williams interpreted the law as it existed under the two thousand and two statue and that part and the two thousand and two stance that does not apply in this case that's what i was tryin so i understand where you're going with your argument right now the other thing about way i'm saying is that under the two thousand and two statute the retailer could file a motion to show that the retailer there were no facts and circumstances other then the status as a seller and williams in fact that affidavit was filed by the retailer there was no countervailing affidavit by the plaintiffs now we don't have that in our case there were no as a david spiled by the there are no affidavits in this case and yet the court looks to the law really the wrong law and look to a prior case that the district court itself it decided under the two thousand to stan rather broad that the defendants knew or should have known about the published decades long history of at least thirty k sure courts etc this does not specifically refer to the manufacturers this refers to all that and that's it was a great deal of evidence or information that we refer to all defendants alike these paragraphs do now what what is the remedy for that i mean what what are the defendants to do and i think there's an easy remedy under the the two thousand and two stanch it was quite so if they can fraudulent join your issue for teens only to eight out of the forty plus plaintiffs and you don't really develop the argument but i take it what they is that no matter what this court does with the eight plaintiffs who have alleged a claim against resident defendants shouldn't we may and the others you have a response to that yes my response is they're asking if they had a mr joinder argument to make in response to the remained argument they should have made it they didn't make it and what that argument would raise is quite an interesting issue of what mississippi law on jointer is and whether those pointers were properly joined under mississippi law when the complaint was filed none of that was raised at the district court level none of that has been briefed and so my response to that is that i before any of the consolidated or the individual the separate complaints were filed and i think that really the plaintiffs had no choice but to comply with the court's order once once it was in iowa to remain and they had a choice of several complaints and that's what they all right then then going on to the dismissal issue under the mine taste i think that we need to put this dismissal in the context of the whole civil rules and the package of civil rules and the civil rules of course are motivated by spirit of reaching cases on the merits and not dismissing cases for technical reasons that don't go to the merits and most of the rules that require our call for some kind of action that there's kind of a second chance if your complaint is found an adequate or if you if i had more definite statement as ordered by the court the rules that you get more time you can amend that if you don't do them and into the problem is for example with amendment of course you do normally you ask for it you don't just ignore the time again line and assume that the district court compliant specifically has been reviewed by the court there's been a motion directed to you and your complaint has been found individually lacking and you have been given a specific deadline in a specific order that's a different situation than i see a model that applies pro speculate to all cases coming into the case coming into court later now and if you look at other situations discovery for example if you don't give the mandatory discovery under rule twenty six  a case doesn't get thrown out well yeah that's all true but here you have a court order and the problem is failure to comply with the court order which may have been stupid or may have been brilliant c m o made well be justified by all of the considerations that you mention but the question then becomes well is dismissal justified under the circumstances of this case that's the way the court always looks  violating the order i have to disagree with it we have challenge the order and ability of the way the orders structure but my primary argument really is not to the order itself it's to the dismissal and it's a evaluate the five malone factors in light of the way this case comes up and the way this case was disposed of that's my argument now i think you might look at the c m o fifteen or see about fifteen a hundred a month factors and say well those orders that someone curing in a federal court where the rules federal rules say that one of the sanctions for failure to obey shouldn't be applied to your situation i must say it's very hard for need to understand the reasoning so i like to hear it from you and how can he learn it and just ignore a federal this delay delay the resolution of the case it did not in fact the defendants have never pointed out what they said they were stopped from doing what anybody was stopped from doing because of this delay and in fact the next thing is control of the docket and the court has the right to control the docket well the court's docket had been controlled at that point in fact that separate complaints of infile before any motion was brought forty of them had been filed before the motion was brought the others were filed before the rulings in the thirty's prejudice what's the prejudice to the defendants nothing they weren't waiting for anything they knew who who was being sued the complaint was to draw out from this much as i can about it well if if if the point is the m t l the civil rules still apply and the preference for deciding cases on the marriage still applies in an m d l just as it applies in any other case just because these case was yanked out of state court and removed in federal court and transferred from mississippi all the way across the country to seattle doesn't mean that these plaintiffs are not entitled to have their cases just as a prisoner would be entitled to have his case adjudicated just as an employment case should be adjudicated just under all the same factors i don't think that no one has really argued that these malign factors don't apply and say that and i don't i mean the fact that there are a lot of cases and d l i don't see why that means that these clients the andersen planners shouldn't have their case resolved under the interesting question i'm sorry i didn't i didn't finish that because that yes i mean what an alternative sanction have surprised there was no need for an alternative sanction in fact to decipher complaints have been fined i am going to i just missiles if i may address the questions raised by the court on removal and remind first of all williams clearly said the retailer knew of the risk involved in danger to plan and why is it in that the allegations as general though they are don't suffice because the allegation do say that the retailers formlessness knew about the danger and failed to warn first of all let me to answer that question keep in mind that  i as well as numerous reports from the company's own internal safety database now that can only mean the defendant manufacturers that is not any indications problem of knowledge the convenience store of gas or i know i don't quite understand that because because the allegation is that they had knowledge actual or constructive i suppose of a published report and that's not an allegation that the manufacturer concealed the only relevant information no your honor but if you go to paragraphs one forty six and one forty seven comply the allegations there are that defendants were aware of these risks and failed to warn the plaintiffs or the public and i would submit to you the plaintiffs all the public includes a gas station a convenience store and local drugstore and that is exactly what judge ross dean held which is consistent with three other federal district judges one in mississippi in the lewis case one of the differences being that we can't take one can't tell  are not sufficient particularly when you take it into the context of this complaint you have to look at this complying and the context of this complaint when you have a complaint that alleges against sixteen different manufacturers and thirteen different retailers come clue janeiro allegations such as that are not sufficient to overcome a motion to remain there must be an election option what would be sufficient well that is the problem that is the problem with these general conclusion allegations and the law that we have cited has said and in the context of these kinds of complaints and particularly particularly where mississippi under williams requires knowledge that those kind of conclusion are allegations are not sufficient without song reference to a factual basis for the allegations this is true sharpen the point a little bit then are all of the defendants the local defendants of this convenience stores or others in pharmacy there are there are four non diverse defendants one is a gas station one is a convey still what and there are two local drugstore that's what i thought so yesterday i went into the rite aid here in seattle and if you're going in for some kind of medical or you know the kind of the product of we're talking about here wouldn't it be you might turn to the pharmacist behind the counter and say what would be good for my problem you know with this cough or whatever and wouldn't those pharmacists the in the chain of distribution where the probably little careful if you asked to recommend not whether that happened or not you know a convenience store for seven eleven but where you're in a drug store where people actually go and i often ask pharmacies for recommendations it's not terribly far fetched that coming back to judge armors question what is that the kind of allegation you're saying mississippi law for notice pleading requires them to speculate that in fact that really happened or it's enough to base it on  supply i think i'm aware of the reports there were the rumors and so i think it's more reasonable believe that when you're dealing with this type of local drug store which we have in this case and when you look at the fact that outse allegation that the defendants knew or should have known about the published medical literature there should have been some additional factual allegation to that fact to that effect that's what we believe should have been  fleeting concept is the product of deciding that you put the front of the notice and then you flush out of the details of your discovery and you're suggesting some because this is a product liability case in mississippi that you have again to the rational an opinion when they talk about mississippi law and to louis where on the one hand there's an allegation such as this on the other hand there is an allegation that the defendants withheld that information from the  for a court order which for an excuse that was groundless in malone the court will at this court rely heavily on the fact both for finding risk of prejudice and for finding strong  with respect to the end this important of which she expressed lee addressed them along factors including the lesser available remedies and she found that the harshness of this remedy was warranted i figure on or in response to the question about whether of all of the diverse defendants or convenience stores paragraph fifty eight of the complaint or first two threads inc i can see corporation possibility of recovery exists against the local retailers defendants argue the plaintiffs complaint contains only they can conclusory allegations against these retailers and that the complaint did not give these defendants sufficient notice of the claims against them defendants us pleading defects as a basis for finding a problem jointers problematic the mississippi and federal rules only require the complaint make a short and plain statement of the claim and so he found the complaint sufficient even under the the allegation