ability arbitration obviously is a matter of contract and there has to be consent our position is that there was no contract and has no contract between ecker order all and a if you have not read all the briefing yet that there are multiple entities involved and the issue about entities is very important to my client obviously there's freedom of contract issues here which we believe the lower court ruling  contravened and the issue about which an itty my client contracted with obviously affects my client's rights and obligations and also if you're your client to the architect and they brought t don't even know that such a thing exists until you bring it to their attention give it to them so if there's any doubt at all should it be interpreted against your core while both parties had an equal opportunity to read review make changes to the agreement and recommended that they have it that the contracted saucedo year it was an honest question the contractor was not a lawyer contractor was not a lawyer but the but the contract itself does say on each of its pages that it's recommended that news end up dealing with a battle these doctors in a battle over different kinds of practice and then you modify the building for about everybody concerned in the case there was in point given by each of the doctors with regard to the design of the building but at the end of the day we have to look at the contract and the contract was specified to be between my client and family i center and some of those doctors were not members of family i center at the time  building where we've been hiding there was input from everyone but that doesn't change the fact of who the contractors were and if if that had been the case the doctors clearly could have asked to change that and that never happened  and now ten years later we're looking at a contract that only exists between family i center and i current oh well what about your familiar for the contact case yes why doesn't the contact case say that when we get these kind of cases and they're bound to happen all the time with all the entities and all the contractors playing lawyer and that kind of thing which it says that we've got the arbiter first look at this and just see how it plays along  going out with the so why does the contact case not apply here well the facts in contact are obviously different than we have here contact and involved to signatories to a contract their corporate farms signatories two other facts that the the court found very important to its decision in that case is the fact that they continued to work with each other and they continued to treat each other as if they were subject to that contract regardless of the had been formed even before the contract with my client was signed using a different name which was family i properties sold the name after didn't even exist at the time of the contract and what about the apollo for  company called digital apollo actually to decouple and that's another point i just want to raise briefly in all of these instances we have an actual signatory to arbitration agreement suing  non signatory or another signatory and then that defendant seeking to enforce the arbitration we have the opposite here we have a nonparty nine signatory to the agreement seeking to enforce our arbitration against a signatory to claims which they didn't believe or didn't believe arose out of the agreement at play here there's no anticipation between accurate word on family i center that family i center when i enter into some separate agreement with of to am so we don't believe that particular case applies i think the courts as a wholesale are the persons wrongs and issues involved closely related i think that's the bottom line and this is a matter of federal law because i think what the court says that it just last year well except that again we don't have the inner relationship between the parties here we don't have after him having any relationship with her or dell and we have two separate entities formed by the doctors which really don't have any relationship either to the contract if jams not mentioned in the contract it's not a part of the contract it's a separate entity complete with different legal rights and obligations and the doctors were aware of the time they formed it and they either chose  am well it seems to me that the the issue that one of the issues we have to resolve here is that if you look at wholesale grocery cd partners we have a signatory party and the signatory that's correct and so then somebody has to decide whether there's a close relationship and and your course arguing there isn't and the other side's going to argue and come up and say there is so the question is who decides that a seems to me than our fellow case that's for the arbitrator they have to decide who the who what their own jurisdiction is and who has a right to be in front of them once they determine that there is an arbitration clause  one thing i think we have to take a look at here first is with regard to the close relationship issue most of the cases where you're going to find that a non signatory is in total don't force an arbitration agreement the non signatory essentially it's always a big issue it's the same subject matter is the same whether it whether it's the the the family i center is the same it's exactly the same dispute i presume you have exactly the same defenses if there are any i mean you can say so i mean you can sit here and you can put your list of arguments and their list of arguments and somebody's got to decide and the sees me under a federal case we said the arbitrator someone who decides that  e to favor the judicial policy for arbitration you can't overlook the clear language of the contract and that contract specifically says that arbitration applies to claims between the parties and i believe that section seven point two point two of the contract and it says any claims or matters that are between the parties that aren't resolved by mediation shall be decided by arbitration and that's where we see the incorporation of these aaa rolls which again that you have to look at the language of the contract again arbitration is a matter of contract and so to the extent that as a signatory may agree to arbitrate with another signatory to the contract that doesn't necessarily mean that they've agreed to arbitrate with the non signatory to the contract so get involved in this race and every one of these cases will have that issue but them but the language of all the cases is not the same a lot of the must be decided by the arbitrator in the first instance to draw on counsel's last point that you know the contract language is not broad it is the contract specifically provides that any claim dispute or other mattering question arising out of or related to disagreement shall be subject to arbitration that is in the contract that the that entity not a party now i don't think that was in the wholesale grocers case i could be wrong i don't think it's in most of these cases now does that make this a different case it does not because the the that question goes if james claims and that is a question for the arbitrator and that's an open question the arbitrator gets to decide perhaps that that provision applies and excludes or prohibits whether there are better claims or not is left to the arbitrator because this contract specifically incorporates the aaa rules and under this course you know decisions that i cite you know follow green f f s see this court has held that where parties incorporate rules such as the aaa rules that grant the traitor the power to decide his or her jurisdiction and issues relating to the existence scope and validity of the arbitration agreement that goes to the our or arbitrator not the core you say to accomplish what they want to accomplish they not only needed that clause but they needed to express that those rules specifically grant the arbitrator the power to decide issues of arbiter billeted and there's a sufficiently close relationship between have jam and family i center that it doesn't do violence to the dell is being the dispute involves its design of the very building that's at issue in the contract so there is this isn't a situation where accurate word l is being forced to arbitrate claims with strangers or claims that are unrelated to the contract that contains it's our creation clause there's a very strong relation be sure relationship between the parties the issues and the claims and as i understand it family specifically to build the clinic right right there's a record rick contain any information as to what information if any was was conveyed accurate wardell as to who the true owner of the building was or the family i center was the name that the doctors use for their practice and use these are small town doctors that simply used the name family eye clinic and you know they didn't think much of it that's what their testimony indicates they don't know the specific deposition sites but they didn't give any thought to it they just thought of themselves as family i sent and that's why the use that name at that time and it's important to note that eckert were bell was the one that drafted the contract and i didn't really draft at they just picked it off the shelf right this is the standard a i a stuff all put together right standard in a contract but  standard contracts and i handle these on a regular basis they require input you have a bad way your counsel your client that time didn't have counsel right i don't believe so neither party had counsel right and they both took the form contract right right ye prepared the contract there they have an a standard form contract you need a license with the a who had that license was a rebel what do you mean there because people copy of all the books all the time so help me with what you're what you mean you have to be well typically the used to copyrighted contract and but the important point is that after we're bell was the party that build out the blanks in that contract and they listed family i clinic as the owner of the project that that's where the money comes from for the architects and contractors and stuff i mean is there anything to the record about that the record does reflect that i believe was dr janeen paid one hundred thousand dollars to acard wardell under this contract and he is not named as a it's called into question so there's some record that afterward well knew that others were involved and it specifically took him put from all the doctors involved in putting dr who i believe was not at the time a part of the family i center when the contract was entered into but jeff records sat down with him and the other doctors and receive input from all the doctors involved as to the design of the project so mr record knew exactly who he was dealing there are no new people mean in terms of the flash in front of him he knew but he didn't know anything about the legalities of who he was dealing with specific testimony where he goes into his knowledge of the legalities of who's dealing but i think the but it's important to note that you know as this case progressed tech to design her west tech design to perform the design installation of the eight track system in f m j properties lasik surgery center and will minnesota that's at appendix one twenty seven then soon after the initial demand was that file that was file the date on that is  held that they wrote the contract all they had i mean i'm at the time of the arbitration that you tricked them and that's the reason that they went for two and a half years you know are they as judge come pointed out they were certainly capable of picking up understanding who or whether there were questions as to who they had contracted with but again this all gets all these questions act go to the arbiter ability of the f james claims and under this court's case saw in the contact decision the second circuit and apollo out of the first of those questions as judge kyle recognized our go to the existence literally and scope of the arbitration agreement and that both judge kyle and the arbitrator recognized as an open question so if so the questions as to whether f jamieson non signatory can enforce the arbitration clause that again goes to the central question of whether the goes to the threshold question of arbiter ability which under this court's precedent goes to the arbitrator because in this case there is no dispute the contract incorporates the aaa rules and it the contract also has brought arbitration language it goes to any claim or dispute that arises out of or related to the agreement of james claims are written directly related to the agreement because they go to the professional negligence of accurate word and design the i sent another key point to keep in mind is was bound by contract to arbitrate claims with that jam and that they also agreed to private arbitration under the c r p rules of james claims those rules are almost on this record clearly understood or believed that it had a contract or was dealing with f j m properties and that nothing was amiss and proceeded for two years almost three years to arbitrate its claim and then only a month and the same claims this might be a real material question but what one of the big complaints here was that the design of the building was that the size of the rooms the head of the ceilings the look on briefly honors afterward l has presented no compelling reasons for this court to walk away from its decision in green valley wooden or from context the issue of arbiter ability the existence they've always taken the position that their parties to the contract and their subject arbitration so no actually have to initially allege that it was the party who hired in contract did with acar or del and only in the context agreement was based on the information available at the time i don't think anybody had the country in hand even when they did there was no reason to believe that or that family i center hadn't simply changed their name to have j m and that's what the owner of a word actually testified to you asked if there was any evidence in the record that aker or dell knew about all these various entities and who the true owner of the land or the building was in he did not if jeff records deposition he was asked those questions and he said he never heard a family i properties the doctors had specifically talked about maybe developing different entities to one to rent to her lease the building practice back to the other one but all wasn't involved in those discussions or the formation of the various entities family or owners we just believe that we don't have the same claims or issues here and valving the entities it is important that we have the opportunity to