morning your honour's wanted to stephen kelly on here on behalf of helen's telecommunications group and roderick marshall i would like to ask the panel to reserve two minutes for a brief about a necessary at the end scheme that was based on a conspiracy between two individuals principally and their organizations the individuals are robert wood a member of a number of deloitte entities and i will return to that issue because that's an already existing contract to flip them for a much higher price than they would be purchased to other outside investors the key as it was pitched to mr marshall was that they needed cash on hand on the ground for an entity to buy and roll up these companies in  area make the flip happen that mr wood and his partners at deloitte had run into some trouble delivering that investor for minas and had to deliver another one and marshall was the guy he can make a lot of money here alec the statement was that someone within the lawyer had been caught trying to bribe somebody who was going to be the investor that investor had to back out because contacts with state officials and  that why the was necessary i believe it was in the first in may have also been in the second there was a number of motions but well as to which there was at least two declarations in the record so minute by mr marshall there's also the amended the many complain the allegations many of delay defense is that simply misapplied the standard and made factual findings rejected factual allegations the plaintiff when it simply was not able to under the law to briefly touch on the the manus situation because i would like to manus he knew would would was was the guy he was bringing them together and in order to make this happen to get him his money back marshall was going to have to rely on manus delivering at the end when he flipped he was going to get his money from his connecting with meanest in the way they connected was they had a partnership agreement marshall formed a company to invest boss in telecommunications group put the money in main it had his car companies g c s and it had a subsidiary that partnership agreement that partnership agreement had a specific arbitration clause for terms of disputes about the interpretation of the agreement itself and operations essentially dispute about the operations of the partnership in the performance of the partnership we said it doesn't fall under but in any event he's not the signatory he's not a quote unquote party to the contract that gets the benefit of the arbitration clause and specifically cannot because the parties in the agreement excluded third party clean arbitration for allegations of personal fraud against minas not for allegations of then failing to operate the partnership as agreed this what he's being sued for was conduct participating in a conspiracy welcome mr marshall into the investment in the first place not how the partnership operated the fact that mr marshall and his company might have arbiter of all claims under the partnership agreement too there is simply no law to suggest when it went when you possessed some arbitrary claims you therefore must wave against the rest of the world and those parties that you do not agree to arbitrate with any individual claims you have against them and you're only now subject to your arbitrary claims relationship as this partnership agreement have w last value of the standard fraud damages are the difference in the value between what was it was represented to be in the difference in what they delivered there was no real venture that was ever going to be able to work and work out we believe we've alleged there was honor i do not believe there is any way for it to preclude a fraud against an individual if some individual comes to you and makes sense to you i will do the following for you if you go sign this agreement with with mr cowley and your agreement with mr crowley you agree to waive certain things such as representations or fraud which you never agreed with to waive any claims against that individual who lied to you when he said he would do certain things for you for contracting with me you find out it was all a lie and you sue that individual you say well you agree with m that it can't be delivered in the claims against mr manus we're not relying on it on the the failure to perform by the partnership under certain representations or promises or holding them to any of that the terms and conditions of the partnership we're turning to mr means instead as you lied about everything you lied about there even being the possibility to do this deal and you lied about how we were going to make our money back specifically and more importantly against would was conspiring with the california resident to hook marshall and he brought them together and the way would made it happen is he said look you're not going to lose any money marshall to lloyd's run a valuation of this project of one of the two cable companies that are going to be combined if let the valuation of that is forty eight million dollars far in excess of what you have to pay and you're going to get your money back and don't what will guarantee the value of the of that cable company one one firm that could live or all these services such as valuations of international deals this was a deal that was going to be bought geary and company vancouver investors flipping bulgarian companies to israeli hundred six about a two hundred fifty thousand dollar investment there is no question that the discussions started in slovakia where both wooden marshall worked that continued in israel where mr marshall was introduced paperwork back in the south and guaranteeing for marshall to lloyd's stood behind this forty eight million dollar investment you're not going to lose money to a lawyer borrow the money they said well we've in front you the money marshall to let you go out and borrow the money you just pay us back so he's acting on behalf of the what he's coming here to seal the deal because he's making marshall comfortable with the california resident who marshall has to rely on and trust to get his money back because when this thing is flipped the lawyer doesn't have control of it that's the deal the person who has control of it is manus and his companies and so marshall had to trust is going to get his money back from somebody didn't know the guy who didn't know him would bring them to california to meet him make him comfortable with it he seals the deal and the allegations in amended complaint and in the declarations are by marshall he would not have made the investment but for the representations made in california that counsel if we were to agree with you again mr manager that you've got jurisdiction over mr manners because he's a california resident in the so would purposely avail himself he brings them to tell california the first time they close a two hundred fifty thousand dollar investment and then that's not enough suddenly marshals told the two hundred fifty thousand dollars we talk about that walks around knowing everybody sells them as a big wig down here was got a lot of credibility they negotiate for four days in california come up with a three hundred thousand dollars additional investment fifty thousand dollars which of that is right up front interest payments to would it for the lawyers borrowing the money to representations of california and there is simply no record of any discussions anywhere else in the world about that additional three hundred thousand dollar investment but in california nevertheless the district court says it's really irrelevant because there were six years of discussions there's only two conversations in california they were important enough there was not six years of discussions for this the this investment the fraud happened when they got all the money they could get out of marshall and they moved on they skipped stringing others along stringing marshall on for years making it pertain like oh it's all it's going to happen is going to happen going to happen never had a possibility of happening but the six years was an additional minus to cover up the fraud the fraud happened in a few months two conversations in california couple of conversations elsewhere in the world if the district because there was no evidence or hearing the court had no ability to find facts against the allegations of the complaint and declarations submitted by marshall and others late in fla vonna for example a former  e partner said that the lawyers central europe manage day to day office decisions like hiring firing of staff and professionals cost expenditures oversaw financials manage day to day marshall testified in their declarations that a c e o of central central europe held would out as being a member of its management team again the court went ahead and set in found there was no those reasonable inferences in favor the plaintiff it simply had no ability to reject the allegations and it's that adopt different ones but it did and that ties up the problems with both the allegation that would you not purposely avail himself when california is defeated by the representations by marshall that would insist that it come here that they negotiated the closed on the first agreement and the only place they negotiated that second three hundred thousand was here according to the record as it stands right now you're one of the plaintiffs don't claim that my clients did anything in california they argue is a basis for jurisdiction against my clients that mr wood was their agent and that he did something in california in fact your honor there's no basis for that the district court correctly found that mr ward's two alleged contacts with california are so minimal and attenuate that they failed to would draw that challenge well for example that shall we really directed that challenge your honor at one thing which is mr mr marshall submitted a complaint and then he submitted three declarations in the third of the declarations for the first he was talking about and if you look for example of his first declaration that he or one twenty three where he says this he talks about some representations in paragraph nine that he says would made these representations to me in r marshall that deloitte slovakia was representing not mr marshall but yes and that in fact it was acting for g c s in connection with this transaction and your honor that the first i guess the first point of argument is that is totally insufficient in the case where everything else happened in europe that if you look at mr marshall first spoke to mr wood about this when they were in slovakia that's that's on the record at page two ninety three california represents the site of maximum contacts but whether there are minimum contacts sufficient to comport with all that so sense of due process and fair play that's right and even on this why there's no question of that that the majority of the contacts take place in europe the question is whether there w sufficient contacts in california for the exercise of jurisdiction here everything you're on to basically everything occurs in europe other than these two meetings and even as to these meetings the marshal is unclear in his declarations and confused as to market if i might say you're on to the fact that he was a managing partner of the late slovakia does not mean that he was here in california with all respect in every respect that he might act here in california he had the power to acting and therefore could not possibly have been acting for him so for example he says in the in his first amended complaint a paragraph twenty two paragraphs thirty which is that thirty were told marshal the g c s was saying that you had to file a certain statement that therefore mr ward must have been acting for deloitte slovakia when he went to california in fact it's in fact i don't see anything anything in that statement that suggest that whether or not someone files of files a declaration or not doesn't mean that he was asking that whereas in contrast you have the plaintiff himself here saying that mr wood was acting as his advisor on the one hand that's that's in his any basis taking all their affidavits is true for saying i was that mr wood acted sufficiently here that he had minimum secure sufficiently even on his own and secondly that whatever contacts he had here could be attributed that is how that is how corporate america and corporate europe and corporate other places that they act with different entities many subsidiaries many affiliates all related entities but that that is how it works i don't believe that that in any way iran or affects  or provides a basis for jurisdiction here whatever questions one might have about it as to a lawyer for example there's no basis whatsoever given for jurisdiction here no one no one alleges anything that the lawyer to son there is no case this within what's here within what's in the record and that was put in by the plaintiffs for jurisdiction over any of my clients unless the court has for the questions  want to deal with that i'm happy to address that issue your honour's this is a case in which a complaint was delivered to an individual on a different continent than my client my client contact having heard that documents had been delivered to a different individual on a different continent contacted the counsel for plaintiffs and said that is not service if that honour's with a default judgment against him if he did not appear and contest the service in seven days time at that time your honour's plaintiff's counsel were aware of where mr wood was they had facts and i'm not sure if this is in the record or not i believe that at the time service was purportedly that there was no proof of service there was a fed ex of documents to him at his office address in broad islama slovakia and my recollection purported service your honor there was no proof of service filed no one was pretending that federally expressing a document to someone's business address on another time and was service there was no proof of service with respect to that federal express contention that was service later in the action after plaintiff's counsel was advised that we in california had no authority to accept service from mr wood after that original fed ex delivery plaintiff's caused a new pleading to be delivered to mr wood's ex wife in north carolina at the time that new pleading was delivered to north carolina plaintiff's counsel knew where mr wood was they knew he was and brought a slot to slovakia they knew he lived there they knew he was married there and had children there they knew that he had california counsel and they knew that he was insisting on being served properly under the hague despite that instead of initiating service against him under the pain or trying to serve him properly they delivered a new pleading to his ex wife at his either on the day or within a day or two of the hearing on his motion that hearing was july eighteenth so i believe that the service was fifteen percent right your honor i apologize that i don't have the date response to the complaint served upon him under the federal rules was due within the timeframe for responding to a complaint which is twenty days and i'm sorry that i do not have the records cite but there was there was no contention that that was service the contention was that delivering a new pleading to his ex wife in north carolina constituted service under governing law that isn't colorable service but the real question  you don't have any jurisdiction over me he he did have actual notice of what the original pleaded but it was done right they did not even contend was properly served on him they didn't file for the service and there was no understanding on his part that there would ever be a contention that pleading was going to be operated like any action by the rules give you is a choice you make all your objections on the service objection jurisdiction the federal rules command us not to omit from an initial response of pleading and objection to jurisdiction mr wood noted no motion that he did not want to waive want to promote the efficiency of process and a lack of duplicative motions it would be an odd rule though that says that a defendant who has not been served with process nor received physical of the operative pleading had to bring his motion is that the federal rules command defendants to bring a cluster of motions to dismiss dispositive motions at the beginning of the case and to do it together what those rules contemplate is that if they prevail the action will be dismissed they don't want to see successive motions to dismiss we can't bring something called a motion to quash under a different rule we need to bring a motion to dismiss and yet oddly so oddly those rules have been interpreted complaint under a different rule judge white had dismissed the action there would have the complete action was then refiled and served on my client his first appearance in the action would have been a personal jurisdiction objection judge defendant can be hailed from a distant country country to appear in an action and to have waved a personal jurisdiction argument where he has never received physical delivery of the complaint that would be an extraordinary interpretation of the procedural rules and i would suggest inconsistent with fundamental fairness and and and fair play this is not a case where there was a delivery of this amended complaint to mr wood or his counsel there was a delivery to someone else on a different continent and there was no contention that there was any simultaneous mailing to him or to his counsel in this case plaintiffs withdrew their contention that there was proper service once they got to the hearing on the matter the case could have and i would submit should have been dismissed at that point but the court relying on who are in motion then be regarded as a second appearance rather than as a first appearance due to that procedural oddity your honor i know that i'm out of time but i did want to address the minimal contacts issue to counsel your your way over  consider the partnership a melody because of what they allege to be a fraud in the inducement of their partnership in the conduct of the business between the parties up till that point it's a very important case that has explored our briefs quite the arbitration clause that we have issue here is much broader than than plaintiffs have suggested it does not just have to do with the operations of the partnership the exact phrase respect to the conduct of partnership business that is an extremely broad scope that covers not only things that arise out of that partnership agreement but also the the conduct of any business having to do with a partnership and in this case the partnership was formed for the purpose of having a fostering a joint venture in the ball carrier and cable television systems market and and indeed that's what the negotiations and the dealings of the parties up till they have point in continuing on after the execution of the agreement in august supreme court have said that in such cases where you have such a broad arbitration clause that the that the matter must be submitted to arbitration and nowhere is that concern is that policy more heavily relied upon and more heavily given weight than in the area of international commercial arbitration which without doubt this is is this and can the arbitrator decide this issue of fraud that the plaintiffs have made against mr  honor is exactly what prima paint says that's exactly what does in first as merrill lynch from the tenth circuit in one thousand nine hundred three says and in fact your honors that is what the law chosen by the parties in the partnership agreement the province of british columbia that is what their law says well under british columbia law the question of jurisdiction of the arbitrator is first submitted to the arbitrator the party disagreeing with they had to terminations can make an appeal to the trial courts of the province and then from that the decision is final so there is a forum there is a choice of law there is a system under which these disputes and all these questions of fraud and alleged fraud can be arbitrated and and that is in the arbitration system that was provided for by the parties and  that is set up in british columbia and so we are much farther out of time on most of the courts haven't unless the courts members have any questions i would be pleased to see the remainder of the thank you very much of this case in that as to the waiver argument i appreciate that you have the issues and i'm not going to but i do want to address the timing because i think there's and there's been a misstatement that mr mr wood had the complaint the original complaint in he and in january of two thousand and three he refused to waive service he knew all the facts to support a procedural challenge that there is no jurisdiction over him personally in january two thousand and three there was nothing he wasn't aware of as of that date to support their motion in in we then went forward we knew he was a resident of the united states also based on representations of mr marshall we believe he told mr marshall bought he told him he had a house in florida or somewhere else we did a search we came up with a valid north carolina driver's license so we thought maybe it was north carolina we looked into it so we called his wife his wife said she she had the power of attorney for him as ex wife she represented that to the processor she had power  challenged it they showed us that when we went back and forth when they finally showed us the information they said they did have a power tourney we backed off that but they wanted to dismiss it we said it's not dismissible we we did initiate service under the hague they would not tell us where it was but we served on  under the hague and the court said it's not dismissal they have more time to serve the court did not find that there was a valid motion to dismiss we were not out of time to serve and we were already on the verge of affecting service under the hague as of the hearing but before the he night for that reason so i want to be a little bit hesitant but that's how we've always understood it was a twenty five motion saying service on the former wife was inadequate but they went to her and got her to explain all about the service and didn't take the ame they said so we gave it to him in may in may of two thousand and three the council the amended complaint they still fire papers as early as late excuse me as of july third i believe to begin somewhere in the first week of july they filed supplemental boundaries what is the triggering event for the obligation to file an answer or to file any motions under rule twelve pm when does that twenty day period start under rule twelve what has triggered it to the federal service we represented we filed a pay for service and at what point is it are you convinced that you had properly served mr wood in hindsight under the hague in i believe and i can't give  schedule which you would have that is that is definitely we never argued that they were out of time when they purported to joint the problem with the rule is you are you wave when you file any rule twelve motion but not all grounds it's not a tim