our last case this morning is ws international l l c versus m simons of company nominally named for the defendant below but they are also counterclaim plaintiffs and that right the rights attended to a plaintiff in this case are very important and it's important to think of the  as well as as w s i zooks claims concerned about seven hundred thousand dollars worth of accounts receivable but also the hundred fifty thousand dollars plus or minus we're going to use repairs and who and you see in the record from fifty two to seventy two the e mail traffic back and forth again alina is essentially an agreement and it has to be shown consent either implied or explicit so you see on the e mail traffic that was in front of the district court that there was a communication from chicago saying how's that peter you know that whips the material and what about the motor you know what about that rust so you've got chicago affirmatively communicating with lancaster county and saying do this get this done for me for my machine supposedly their machine so you have actual knowledge and requests and therein springs the l now the lien is only important here because it relates to the bond but whether we find a lien exists or not we still need to have a bond because either it comes from the lien or it comes from real sixty five now let's talk about court didn't say give a reason for not imposing that's correct they did not and under sam belli you've got a requirement that if a court below is going to omit the requirement for bond they must make specific findings let's let's be clear here you've got the nature of zooks interests again go back to its status as a plaintiff it has seven hundred thousand dollars wrapped up in invoices and one hundred fifty thousand dollars wrapped up in repairs that's the hard once this machine disappears there has to be evaporated there has to be a bond that comes in and takes its place that's the harm that the security is the harm lack of security now there was a race to the courthouse in this case and that's and the quote plaintiff that the obvious i won that race they got the gold medal now they said they want to give it up because they'd they want to be in chicago  appropriate here in this district now why is that race important well the race is important or factually speaking it occurred because of that huge a three quarters of millions of dollars in dispute  i knew that there was a suit coming but they had to get their machine first so they made a strategic choice it was a smart move is a smart move get in on the replevin type action get in on the t r o let's grab that machine first move it out to new jersey start making fund down with somebody else and worry about the invoice commercialization later smart move but it has consequences venue without doubt i'm not up venue on the nature of a lien i have no cases to distinguish all of the points of about which we are here today that bring us today are to be answered in the broad swath of precedent that exists already either in the the concept of the rules take a look at will twelve h if you don't raise a venue in the response of pleading it's waived the counter claim filed by my clients was answered answered complaint there was no testimony there were no exhibits admitted into evidence just that complaint it's a pretty shaky foundation on which to stand and let's assume we re with you on venue and we send the case back to the eastern district what other remedy are you seeking here well besides the venue as to the t r o we need to have either we need to have our day in court to be able to say the bond should be this amount because this is why it lies in your day in court just you know past the seven hundred thousand dollars you owe us well i mean the district court made fairly extensive findings that the will belong to us it cetera et cetera and we haven't yet heard about the money right and you haven't had your day in court on that so isn't that what remains to be done if we send the case back to j and i would if i would submit that that this court needs to it inform the district court it needs to make specific findings about the body here's the here's the problem with the t r o and why it's important to have it reversed as well  applicants showing that we that the other side does not own the machine is not the same as proof that they do own the machine well assume from it we disagree with you on that ok then where are we we still need to bond why because security the the machine is is being deployed in new jersey somewhere economically viable pursuant to the wishes of its rightful owner that's that and that may be the determination and and well you know and well you're right on your injury the economic injury you still have a case going on here by you can we are we doing the unjust enrichment about how the public and the private interests have to be weighed and one of the private interests that can be weighed is the lack of the choice of forum the lack of the choice of counsel and the difficulty with which the evidence may be up hand now in illinois that's a that's a hike it's not like we're talking about the middle district to the eastern district or district of new jersey so we've got significant difficulty it's inconvenient that but why not well within the discretion of the district court even without the forum selection well because of because our system is based on the idea that one litigant makes choices they have to mean something so plaintiff should be penalized in this case for good going in minister district not going to look the spark case out of the second circuit was very close to the such a situation they said pretty clearly look the plaintiff gets to make it's a venue choice they don't get to make it twice and they made their choice it was a smart move grab there is no confidential agreement and it's very difficult as it as i know it in the brief to really talk about it because there is not and i don't mean that in a theoretical way there was an offer my client signed an offer in form three informed in the third and the third version and then there was a for a counteroffer offer in the fourth version that came back so there was i who far today know they turned over information no  fact that's why the second collimator injunction was denied because they were unable to prove the submission of any confidential of the material to zuck and another aspect of that that's important to no is that not only is the is the i apologize i lost my train thought watching the red light appear on a finish that thought if you can find it yeah right that there were no there there was no harm no impact to zork this is from the memorandum opinion page eleven joint appendix page one twelfth it was in conjunction client side says we want to get our machine that we're coming to get the other side says hey wait a minute we can't do it right then we want to see proof of insurance and we want a mutually agreeable time oh and by the way you also are six hundred fifty thousand dollars for this product we name my client says we're we're not paying you we don't owe you that on here's our proof of insurance we'll pick it up on the third in their submission to the trial court they've abandoned that position that they have a lien based on the invoices for the product there's clearly no basis for a lien on that basis or the let's assume from it we agree with you that th was not valid the equipment is yours why was there not clear error subject to our correction on mandamus jurisdiction in the district court's decision to enforce a venue provision in a contract that never existed i mean it seems clear to me that there was no contract they signed an offer in form three you sign a counteroffer and four for there was there was no writing  established they say fine go ahead make that amendment we want more discover they had a rule eleven obligation to allow you to amend your complaint i think that's if i don't i don't understand how allowing you or or acquiesc in your filing of an amended complaint in any way binds them to to the existence of a contract that as far as i can tell didn't exist well if they didn't admit you didn't plead you know there's this contract that there's no record s not being a binding on the parties there's no indication from them at that time that they're going to challenges in any way they don't even say by the way you know we're going to challenge just down the road they're challenged  next pleading did they not they challenge that after they lost and that they did they argue in court in the district court is there anything in the record to indicate that they conceded the point that form three was a valid contract say i am not aware of anything in the record without was specifically addressed i know that they made a decision to proceed as they did and and i think the record that was in front of judge angle when he made this decision involved with it with the underlying case and i'm not familiar with the interplay of the issues at the trial level but i do know that they did obviously were willing to be bound  by a document that that provided for venue in illinois now whether i think that undercuts their argument of of harmony in convenience they were obviously at one point willing to be bound by that even if that was never actually fully became the operative document i think it undercuts the the issue in terms of they're trying to say that there's a harm hearing that they've they'll be prejudiced by this the fact of the matter is one party or the other is is going to be traveling for the for this litigation it's going to be in somebody's backyard or where the other party's back yard and based on the record that judge just a faulted back to the decision that zook had failed to oppose your request to file a second amended complaint correct well he addressed the he did yes error so as i said i will why did you why did you sue here instead of in illinois initially with the equipment was here you couldn't have sued in illinois well i think that would be highly unusual i think the idea is is that to move where the where the equipment is i mean that that was truly what was it issue early on with with the t r o slash is getting that machine we certainly weren't making a claim for for the unpaid invoices that's an issue that they were rightfully raised but that that goes into the underlying you know agreement and the posture between the parties and and what was or was not agreed to in terms of venue the immediate issue that was moved on was getting possession of the machine which they were not if the case remains in illinois is it your contention that you have the ability to seek another most recent effort i don't i think that the posher of the case would be pretty much the same in either court the i'm in terms of this see that as as being a basis for the move i think that the move is is based on their their welling us their agreement to be subject to two venue for the dispute in illinois just let me try to ask it more simply what what's left to litigate in illinois what's the next step in the illinois litigation if it stays there if this matter stays in litigation i the only thing left to adjudicate in illinois is whether you owe them six hundred fifty thousand dollars i believe so at this point yes in opposing the t r o did not argue that ws on i did not own the machine it's a little baffling to me why they are now making that an issue there is a verified complaint stating that we own the machine there is their admission that they do not own machine if you look at all the correspondence both between counsel prior to coming to court and e mails that are part of the record for the court below there's nothing to indicate a ownership he made the finding that the parties agreement did not offer or permit the equipment to service collateral for any disputed claims that the equipment was soley there for allow zuck to be able to generate revenue to generate product that we would purchase and that's what happened over two point four million dollars of product was purchased with the remaining six hundred fifty thousand of product in that is what the parties agreement was and he did not find there to be a basis for elaine and i've submit to you that the record does not contain evidence to suggest that  agreed to pay for repairs to this machine that that was making there's nothing to say that w s i agrees to pay there's no invoice there's no record of any request  payment for repairs prior to the hearing there are there is correspondence i think the last letter from counsel on a fifth does in the end and say oh by the way it was for repairs doesn't to figure on look at that at the record at the time he made the decision and he did not make a clear based on the record at that time though if there are no further questions i  you here's what's left to litigate besides the six hundred fifty plus interest and the one fifty repair which is disputed there are declaratory judgment actions regarding whether or not my client has the right to engage in the fondant business and the caramel business there's declaratory judgment about the existence or nonexistence of the confidentiality agreement and there is a declaratory judgment seeking determination that that no confidential information was ever exchanged was ever provided so there are a variety of this it make any difference what laws would be applied to these well  i want to say that i have not specifically looked at illinois law on those issues and i apologize certainly in pennsylvania the it's interesting because the machine was here it's as if you have to you have to you have to assume that part through a commercial relationship know what they're doing you place a half a million dollar machine and like mr county you have to assume that you're going to use pennsylvania law when you want to get it back i mean it's not it's something that you order your can't talk to the comparison of the two but it's pretty clear to me that it's under pennsylvania law then and want to talk about confidential information interestingly as a matter of public record there is in the library of congress searchable on google every recipe from w s i why they published a book for the purpose of providing to the public for high quality caramel and fondant and it was published in i believe one nine hundred nineteen it's you know the notion of confidential information here is is is was a an add on to try to get more here it'll be the it'll be litigated and i'm confident it will be determined there is none at issue here certainly there  no customers that it would apply to even a form for were to come into place for him for still doesn't have a list of customers so even if in the in the fear met in the never world that there was confidential information it doesn't apply to anybody  now i did want to express my own a deep personal shock at my offer to expedite litigation in the district court being used as against my client as an admission o sort i can't believe that the rules would be read in such a way as to penalize me and my client for attempting to provide that sort of consent it would almost be as  while we're here in this court we have consent from w s i to treat the notice of appeal as a petition for writ of mandamus now the court has discretion to do that on its own we don't need to have consent nor could we manufacture jurisdiction by that but take for a moment that consent it would be as if your honour's would then say well they agree to everything that took once we have to have an ability in litigation to have consents to move litigation and disputes to conclusion get over the things that don't matter and get to the things that do your argument that procedurally acquiescing to the filing a complaint sheds no light whatsoever regarding conclusion two things are that the district court in the motion in the opinion on the reconsideration raised two thanks one they said that the defendant signed the contract and second they said that counsel did not object i don't know what else i could have done to further about the venue about the venue matter we denied we we opposed it in the motion to transfer we admitted there are vermin to that that this was the proper venue and in fact that proposed pleading that was met that was to be submitted actually avert causes of action under the pennsylvania uniform trade secrets act that's not illinois version of it but pennsylvania specifically and it reversed venue properly lays here in this eastern district that was that it i think that's the best the most that's the best way to look at it and irrational way but it's inaccurate it's as a matter of logic because the rules it's inaccurate beyond your view because that contract was never signed by your client among other reasons yes yes absolutely if i may just take one moment to circle back to another question that came up the standard of review when we come to the stero it this is the facts are not in dispute this is one of the strange cases where we all agree but the facts are that the facts are all about economic damage and there's no case anywhere that i could ever have found and that is cited even in the portion of  the the district court's opinion which discusses how economic damages like these grave though they may be would justify the irreparable harm of either some cases if if you're going to put a company into bankruptcy or