say so but the good news is that my my colleagues have indicated they have no objection they could have closed this thing a little bit in advance and made my life easier not to mention my associates but they closed it yesterday so the motion was made last night either way i got up lava and either way had a course of action here that should not have been dismissed on a twelve page six motion whether isn't your essential argument in this case that your client can step into the shoes of e d f to use it to use the shorthand for well i think i'd like to vary the a slightly and say that on the one hand my client's argument is that e t f was wearing its shoes status to say it was the ancient and that what section three point two of the energy management agreement says i do these things scheduling delivery and those are exactly the things that agents do but in the second argument which is the third part of beneficial you're right if we like that before you get to that because you're talking about the a m a the energy management says we're not creating an agency with ration ship except to with a very limited area which is the balancing agreements and that requires the consent of the of the utility so  i'm having some difficulty with your agency argument given the fact that your agreement with e d f says we're not creating an agency of course but the answer is look at what i do and not what i say contracts  disclaim agencies and therefore fiduciary duties all the time but the courts below recognize when they actually hear in these cases that just because you disclaimed it and lawyers best boilerpla doesn't mean that what you actually are doing isn't the work of an ancient but if you were suing you d f i don't understand that argument i don't know why your it but i suspect it's because there's a limitation of liability that's certainly part of it but with agent so how are they supposed so why how can you impose liability under the contract to them under an agency theory your honor as far as the record shows and i think this is correct and it doesn't announce anything to anyone in the world except the parties what announces to mojave what e t f is doing is what e t f does and that is to place all these orders in an electronic marketplace in which  i'm not a gas guy at least and not a natural gas guy the e t f purchases gas puts it in the pipeline somewhere somewhere it gets delivered to various places amount in it comes out but their agreement with the with mojave if you will is that you will deliver gas when we purchase it to the location that we tell you to write yes ok so i'm thinking of an tell me why my analogy is wrong i call up nike and i say i want to buy some sneakers nike has a contract with fedex to deliver the sneakers fedex says i'm not going to contract and see whether the contract now lets you as a third party as an official you're the way the contract works with fed ex is nike says we will tell you to whom to deliver the sneakers so they say here the sneakers deliver them to her words so we now know that nike has a contract to deliver a fed ex as a contract to deliver the sneakers to me may i inforce that contract against that against fed ex or is it only nike's contract to enforce you know honor i think unfortunately the answer is it depends if i know it to those are all the facts in the world you can't you can't say it depends you can't make up more facts those are all the facts ok i enforce it as your hypothetical yes  i think that if all that happens is that there is one isolated order to deliver shoes somewhere to someone that mikey doesn't have any dealings with it i mean sorry that fed ex doesn't have any deliveries dealings with the answer might be no ok so let me change the hypothetical now nike of nike says to fedex we ship shoes to many people and the way i take it from the nominations they know where this is going doesn't really dispute we ship shoes to many people we ship them to macy's we shipped into nordstrom's we ship them to four thousand different stores so we're going to and you deliver them to nordstrom's once every month and they then exactly the deliver agreed to take on responsibilities to the to the receiver to get that package to the receiver yes in a situation where as here the receivers connection to this pipeline is set up by in this case mojave your current and where the gas that comes in because this is not like a truck the gas that comes in  understanding how the labels here work when you're talking about a truck and don't work when you're talking about a pipeline is pretty important because the reality here is that every nomination and i know you have to blow up since you could actually read what they say which i couldn't do every nomination says i'm doing a deal here not just to put it into the pipeline but for someone to get it to get let me i understand that and here's here's the question about that so  f put some gas in the pipeline because it wants a delivery to la paloma the pipeline says we have another customer for that gas today so we're going to deliver that gas to somebody else they've surely breached their contract with slightly different set of facts where you put in a certain e t f puts in a certain volume of gas to be delivered to you so it will balance and that day somebody else comes instantaneously comes to the pipeline and says we'll pay you twice as or you're sitting your third party beneficiary which means you have the ability to enforce e d s contract with the pipeline so that that's why i'm asking the question what you're going to and i understand and my answer is i have the ability to draw enforce e d f contract with mojave i don't need to it was long as i draw out the gas and the merest stops what you just if i have that ability then you're not a third party beneficiary that's why i'm asking the question a third party beneficiary must have the ability to enforce the contract against the pentagon or if what you're saying to try and put it in the gas situation is that that the pipeline in effect said i'm going to turn off the interconnect today because i want that gas to flow somewhere else i think the answer to that is yes given the nature of the transaction which is a combined it isn't i sell you gas and ask you to do something else it's i tell you to deliver to get gas to la paloma and here is how i offset the gas with the purchase under those circumstances if they came in on march one and turned off our interconnect and said you cannot draw the volumes of gas which the nominations committed to you i would say yes that that delivery contract is the contract we can enforce you have our state never did that but  that under a third party that if i understand that and i have no problem saying that once you get close to these facts as i said pipelines are different than delivery trucks i think there are interesting hypotheticals about delivery trucks that just don't apply here because what you are creating when you make these contracts is precisely the right for someone to take gas out of the pipeline it's the only purpose for the contract is to get the gas to the plant so it can run and that's why this contact in the context of transactions made every day in nominations is a nomination contract it creates a third party and submitted to computer it was lovely computer printouts that are the record of what was nominated but we made complete allocation it was a part of the complaint there in the complaint that what was decided in the nominations was scheduling delivery quantities specification of la paloma all of those things if i might just go to one other going back to agency point before i reserve a few moments for abo one of the problems with the factual determination is that the court below made is that the court with all respect i think did not understand one of the documents and that is the purchase sale agreement the court said i'm afraid this is just a buy seller relationship but what the buyer seller document did which helps prove this was an agency is it said that when we buy gas and resell it to you it is at the exact same price and that's what makes this case totally different from the case to the court below cited totally different from the cases cited by the defendants when the person who is buying something for you either passes it through or has a fixed in advance margin and so cannot in effect trade with you then that is indication that it's not buyer seller but agency that is what was going on here and that's why both agency and beneficiary in effect because you're not named in the contract right and then and and and the nominations are really not part of the contract but it seems to me they are because they want to deliver gas to somebody reasons number one in the first of many complaint i'm looking to exit the record page sixty one and this is the well paul most precise description of what the nominations are quote each nomination identified paloma as the party that would receive the gas lists of the nominations during the relevant period as a pain from e d f are exhibits k and l and so these are lists of nominations and the idea that there is somehow a separate transaction or separate contract and each day as argued in the briefs is not plausible i mean maybe like if e t f were suing you and saying you didn't deliver the gas that i put i to various places various places but among them la paloma yes that was one of thirty one i think doesn't it had the delivery point see and that's why i'm having difficulty with the district courts notion that the nominations aren't part of the contract surely there surely the there their information that's necessary for you to perform under the contract is not sure but the legal distinction is between incidental beneficiaries and intended not a significant benefit and i take that point i guess i'm i'm having difficulty beneficiaries under utah colorado law are been approached who are known they're known but the supreme court of utah for example said that is not sufficient to create a third party clue but you're not alone in this course but again short in order under utah law for a party to be a third party beneficiary of a contract they must be specifically identified in the that if you're not actually identified in the contract you can't be an intended beneficiary why can't i have a contract that says i have customers just like those of us you know and i can't tell you fi then they surely become the into the beneficiaries because i sure don't want those shoes or gas or whatever it is to go to somebody else now you know they're not just incidental they're they're the very purpose because if they don't get it i don't get paid but seven seven what are you looking at so this is this is one of the transportation service agreements i don't remember whether it's you'll see that the language is that is that the transporter is obligated to receive gas from the shipper who is e t f trading and is obligated to deliver gas to  you're looking at one point one right one seventy seven yes bunch of paragraphs number the left hand side what you start with the number it's section five receipt points delivery points and flow points i'm looking right now shipper agrees to tender gas for transportation service and transport agrees to accept receipt quantities at the primary receipt points and then transporter agrees to provide transportation service and deliver gas to shipper so what you're saying is you know you're saying is your agreement is to deliver it to e d f at those points just in that he v f then can deliver it to the and i understand that argument and it may be well be that that's a reason that they're not an intended third party beneficiary but that's not what the district court said the district court said they're not an intended third party beneficiary because they're not identified and i have like judge kozinski i have some difficulty with that conclusion because the delivery points are noted you know who the do you know where the delivery points are you built a pipeline and interconnect so the absence of identification to me doesn't doesn't win the day on intended third party beneficiary if your argument is instead we structured this contract to deliver it to e d f energy and they were going to be responsible contract to deliver gas to them i understand that but the argument that they're not identified in the contract when the exhibit has a shipping point that you know  built the interconnect strikes me as a very difficult argument to me that's so or impossible so i mean i'm not sure i'm not sure it's dispositive but your argument is one that i have to the questions that draws the two arguments together as mr messer said they nominate the gas they they contract to deliver the gas to the ship or the shipper says bring it to little bring to the delivery point they give it to the pipeline the pipeline then takes it to the receipt i mean the delivery point they take it from the receipt point to the delivery point and read deliver it to e t f trading that's why not just and ok i understand that argument and then the downstream customers become incidental beneficiaries of the transportation of that you may well but they are not the intended been and may well be true but it's not because they're not knowing or not named in the contract it may be because of the argument you made but that's not what the district courts actually they're not named in the contract the place la paloma is a location the company la paloma generating company is the company downstream from that location you're you can't possibly contend that your argument but that's the reason that we're having so much trouble is that your co counsel got up and made a different argument which is that you can't be a third party beneficiary unless you're named in the less you're named in the contract and we're both of i can't speak for judge  and then then why don't we move on to summary judgment here rather than do this it is because well they have because of the way this was pled they pled them so they did not they are not a third party beneficiary as a matter of law because the contract the only intended beneficiaries f they are a they are an incidental been officially because they do get the gas in the last few minutes i would like to discuss the the negligence claim and so even if you had been just i wanted somebody to address because it was big gas and people were injured with file tariff doctrine bar that claim yes you know that scuse me if there is a pipe if the pipeline violates a standard of care such as having a crack pipe or something like that it is a public issue that is a liability of the pipelines they cannot be beyond the rate filed with the commission in the filed rate and what they're doing here is with the negligence claim expanding the rate which is what all the medco court found california vs lock f consumers if we didn't deliver the gas pursuant to the transportation service route they certainly transportation service agreement also says you'll deliver gas ups you go go live or gas of a certain quality that is correct and let's assume that you didn't for professor you have you have identified the price of the gas that's no this is a transportation they could they could cover the cost of the transportation they could cover the the commodity charge for that gas it's not sad because the tariff limits them that i know this because that's what they paid us they they agreed to pay  demand charge in a commodity charge to deliver gas to them if we breach our contract then they would have a claim against us and their damage might be well we're not going to pay the commodity charge for these deca therms because they were bad and that maybe their client what if have a better contract they can put in a filter separator or they could contract with us directly if that's what they wanted and so that they can't use negligence to get beyond not ok thank you and our times think honor so i have three points i want to hit briefly nominations e t f and filed right and i love the filed rate issue but i'm going to leave it for the last on the nominations the fact is that the nominations spreadsheet for el paso specifically mentions not just the delivery point but the delivery name la paloma generating l l c i agree that the t s a proper does not mention but it is in effect an option to ship the contract to ship the second contract that makes the deal is the nomination the court below recognized that if the nomination was part of a contract the nomination had also as the intended beneficiary the question is can you rule on a twelve b six as a matter of law that the nomination wasn't a contract i think the answer to that given the facts and circumstances is absolutely not are you saying that's a question of fact and not a question of law i am saying that once use recognize that there are contract terms in the nomination documents but you're saying the nomination through each separate contracts as a matter of law absolutely absolutely that now there is a they have a as you go along they carry a certain weight of recognition that they all involve the same parties but each time you make a deal that's a deal and let's assume agree with let's assume that you have have they had a p d f had a contract which required them to deliver gas to e d f a year interconnect right answer the question that we eventually resolve came to here which is why does that make you an intended beneficiary as opposed to an incidental bit because the reality in the pipeline situation is that saying you're delivering to the ship or at the delivery point is a complete fiction in d f ain't there it's our interconnect that they're delivering to and they know what's ours because they built it for us not for e gas gets taken out by us they're fungible molecules they're not in the ice actually i think don't know when disputes that my question was a different one why does that given the structure of these contracts make you  limit themselves to the contrary why haven't they done that here in paid one seventy seven well i think the answer is you could conceive of such a contract whether at the tariff would be approved or not is the difference if i see it right here this contract the option says deliver it to the shipper but the second contract the actual transaction says particularly in the case something to that it it doesn't it says when it says delivered to the that's why i enlarge these things because the el paso nominations specifically say at the top delivery name aside the words down d m down name not location that's also in there but name and it says contract creates an option and the second actual interchange in the electronic marketplace creates a contract and in that contract everybody intends  market quality gas that it will use that's the whole point of the transaction but if the t s a and the nomination are construed as one contract doesn't your argument fail because the intended use here almost a few the fuel that needs to run the generators that's the entire point of the transaction and that's the entire agency point as well as third party beneficiaries one third party beneficiary has to be an intend beneficiary you agree yes why can't e t f and the pipeline structure their contractual relationship in a way that says you're not a third party bid perhaps they could have but they didn't why doesn't that paragraph that we've been reading do that because the shipper paragraph doesn't end the inquiry it only begins it the nominations and the transaction because that's when these people who have all right to ship so here's where i want my gas to acceptance is of what are you going to do the spreadsheets merely reflect the terms and see that's that's why i'm having difficulty with the third party bit so what happens is it's a it's an electronic marketplace you choose to do business not with a pipeline  they know how to do these electronic transactions and they're a big customer we wouldn't want to deal with the end customers we just want to deal with e d f you know your honor again perhaps you could have a tariff which had a provision like to any particular collapse alou right that's why i say it's just a framework that's why i said that the nominations are the things which are the second contracts which implement used to framework any one of several dozen framework so is the bottom line the only way you win that argument on their part beneficiaries we find that the nominations are single contract not if they're single contracts but that their contracts they could be like with an option and then a later exercise of the option of purchase they could be a two step deal it's nothing wrong with a good two step all right you're on i realize i'm way over but the point about e t f and its damage waiver the just a collateral point to be made that since india has absolutely no control over the quality of the gas that the pipeline delivers it makes perfect sense for them to have a restriction on their liability let have what if the pipeline refused to deliver paloma what if they just said tomorrow we're not going to deliver that gas who would love well if if it stopped taking nominations la paloma would have had the nomination but it just said we're not going to do it we said you've said a t f has made these nominations for delivery at la paloma and as i said in on we're turning it off if they said they were turning it off i believe we could sue them because we are the third they built that interconnect for us and we are the third party beneficiary of the nominations that are made if they said we're going to stop taking nominations for la paloma i think that would be a first issue as to whether they could do that when we're on the pipeline but as long as there are outstanding nominations i don't think they can turn off the spigot and i don't think it would be right for us to blame e d f about the quality of the gas and i don't think it would be right in the system for the people who contaminated the gas to have no liability to anyone be when the when the contamination damaged us so thirty seconds the filed rate a wonderful topic both medco and this court's opinion in diner gene specifically recognized that the filed rate is there so that contract parties cannot claim the rights that the filed rate doesn't give them and that the filed rate in turn doesn't create rights for any body else that's why your claim is in the alternative tell me i got a contract and i will go away happy but tell me i don't have a contract then the filed rate doctrine does not apply to me versus the duty of care they introduce to contaminated element into a product they were delivering to me whether it's a bar room class or it's an explosion the filed rate doesn't stop me if i don't have a contract from suing for that breach of duty of care so long as the duty of care is not just a contract that the contamination was their fault due to their negligence and again if there is no contract then the filed rate doesn't stop us as a third party any more than will stop an adjacent land