is appropriate and in fact as you reversed on many grounds primarily we ask that your honour's reverse otherwise what otherwise might be looked at as that respect so i apologize i do ask that your honour's look to the controlling supreme court precedent and bear in mind that every other circuit in this be raise at the first available opportunity and i just want to go factually here in this case it seems like there were a variety of opportunities for this whether or not as to my question i understand your point on that and i recognize your point on that but there were opportunities in the proceedings to raise this correct and it was any motion that needs to be consent needs to be sought we had we were waiting we had sought consent before filing this we didn't know if the answer would come down yes or no we couldn't get  a motion to dismiss we invoke we reserve the right we demonstrates everybody let everybody know there's an arbitration agreement here within three days of when we learned about it when i say we you know those that understand the the  d until after in fact the actual motions to arbitrate to compel arbitration so in that sense you know you certainly can't look to this court certainly cannot look at things filed after is it a cost that rises to the to overturn and to undermine the supreme court's high favor ability towards arbitration within you know the supreme court and not the rule that we're going to take into account when counsel figures out what the papers are that's the way to restore that can't be to your credit you said i did it was so it was done within three days out you know that's not the real i ask that your honour's consider as a conspirator had been going it had been before the trial court for close to two years there were three various amended complaints they were counter claims there were depositions taken there was a good morning your honor is may please the court my name is mark crawford represent the happily stephen kelleher plaintiff in the case below the question before the court is whether the district court judge well there's substantial prejudiced first of all the parties went through extensive motions practice as to the as to the merits of the issues themselves on the face of the pleadings there was a motion to dismiss not on procedural grounds not on not not that there was a frivolous lawsuit as as was alluded to and in the contest there were there were issues as to whether the individual defendants should held in the case on grounds of of alter ego or of corporate veil piercing libel he's nothing to do with us that that was being played out that had nothing to do with  or i what was what was substantial with respect to what we were talking about is that there was motions practiced by the corporation they moved to dismiss substantively certain accounts of the complaint as to them there because the it's a police position is that there's the it's improper and that this is part of the underlying rationale for zuckerman and even con and the whole body of cases addresses issue that it's improper to use it to invoke the litigation machinery to use the litigation process in an effort to to obtain a result a substantive result and then sixteen there was a there was an answer by dreamcatcher that included a rule a b three general denial as to the facts and raised fifteen separate affirmative defenses none of which mentioned arbitration and the individual defendants filed a motion to dismiss those with the defendant's first opportunity to raise the arbitration issue and they did not do either in their in a in a motion or as an affirmative defense in an answer the parties went on there were there was not just the initial conference what i would which i would suggest is not to minimize to put together the word issue coming of the cul establish a bright line rule for all cases that if you fail to raise it before the answer before the motion to dismiss then it's over it's a typical way and then as judge edwards points out  says prejudice but if we accept your reading won't it tend to convert this argument into more of a bright line rule that you lose in all cases no i don't i don't think so  what are some examples of when you could fail to raise it in the first response of waiting and still be a while to invoke your right arbitration mate of any ma maybe if maybe if one failed to to raise it in an initial response of pleading but raised it not only referenced it in a footnote but invoked it through through affirmative request for a stay or some affirmative effort to have or stop the litigation and and compel arbitration as wasn't done here until april suppose this if it was done shortly within a reasonably short timeframe after the initial pleadings before any kind of significant activity had taken place in the case if the indication here occurred in january as opposed to the reservation if we treated that as an indication he's still in i think so yes sir because there's there's significant activity that that goes on with with consultation between client and counsel litigation strategy but that's not what look in the holes typically in filing his first response of pleading or motion to dismiss you're trying to make you a bright  i'm talking about the i'm talking about the motions practice which i understand the court has indicated they deemed that potentially be separate from what i'm discussing but i believe that the cost of litigat these issues while we could have been simply addressing the arbitrate in question is is more than de minimus and that did occur in this case and that the the process of consultation  and client preparation for appearance before the judge for an initial conference corporation for a conference when motions to dismiss were pending and at that december sixteenth conference judge made it said i realize this is not step as a motions hearing but i would like to i would like to hear from counsel on the issues and and i needed to be prepared to address to fully addressed all the issues that were pending at that time none of which had anything to do with arbitration that involved a significant amount of work on my part and i submit more than divestments costs usually that any of your with well i'd like to thank so you know in all seriousness no there is some where where exactly to draw the line you know i guess is one of the immediately because if it's not done immediately the other side is going to have to engage in some litigation practice and in your view any litigation practice is too costly is there any room for the back to the language of zuckerman not you me so it doesn't really help you there because it says filing in this first response of pleading or motion to dismiss the word i was going to dismiss may come later after the first was the first response to the complaint which suggests there may be room and the court may be suggesting well you know it says typically file this if this if yes well you know it depends on how it's playing out that's that's the word i was one focus on when i said go back to zuckerman typically like which is which suggests that the majority of the time the answer is is no one needs to one needs to raise the issue well i think that my answer to whether whether the a person who believes they may have a right to arbitrate can take some time to assess how the course of the litigation is proceeding and what the prospects are and then make a decision as to which form which venue would put form there's like to proceed isn't is not appropriate is not  to arbitrate that representation is nowhere documented in the record documents baiter wanted to know if there was an intention to arbitrate anywhere and the footnote says not only do we want to arbitrate it says we have requested consent the actual issue and the justice that's necessary in this case and in all cases in the circuit thank you very much for the counsel of cases