the court my name is andrew grimm of the digital justice sunday sion on behalf of plaintiff appellant cynthia thought i'd like to request two minutes for rebuttal please you may have it thank you your honor i'd like to address my remarks on the copyright registration issue but i'm happy to answer any questions on which all achieving mission ends or the review of the state law claims on the merit on the copyright registration issue i think there are three key points worth emphasizing the st is  an application for registration was filed with the copyright office while the case was pending and later the the not application day later became the effective date of registration by operation of law under section boards and d and then later the district court in both this case and court as ramos dismissed the cake in court as ramos on appeal th reversed then sends it back to the district court superman attempts to amend the pleadings and include allegations relating to the registration decision is a dispute as to what the registration actually covers and an assertion of that at the material you file it hardly shows that the registration covered effect of the registration and then finally is the fact that no stay was requested beyond the period of the sta which the district court and heard to await the supreme court's decision now why it seems to me any one of those is fatal to your cl judicial notice of something as to which there is a dispute as to what we would actually be taking notice you were put on notice of that and you have not reply aright so let's assume that this court does not think you have met the judicial notice requirements are right therefore where are we well i would want to distinguish there's request about the scope of the registration and we did not ask for a determination of ownership which is a separate merits question what we asked for your honor was merely judicial notice of the fact that the restatement of a much more limited motion for judicial notice than i thought we had on the record how is this material to the district court's decision that so why when there is no request for an stay no request to the district court if it has arguing contrary to your briefs that this is not a discretionary decision had you issued i had you requested a further stay that that was not subject to the discretion of the district court but it was mandatory that the district court must give a stay no your honor my position is that congress is the purpose of the registration rules trial court and you come to office and you're saying that there should have been a stay granted in this case a further stay beyond the stay pending the decision grant your client a stay pending the outcome of a supreme court case therefore we also have the interest and orderly  at this time audio and video and attorney macof on if you could unmeet your device and introduce yourself on the record may it please the court james mclaughlin the affable helli doing business brady built son rooms your honour's the district court's ruling should be upheld because st the district court properly dismissed the allens copyright infringement claim because she had failed to pelleas motion for summary judgment after the request for admissions for deemed admitted turning to the st point your honor it's the district court properly dismissed the appellant's copyright eighteen uses the term institute for the state it's largely determined of the register issue but it also shines late on the turn institute the supreme court in th the state stated that a lawsuit cannot commence prior to registration of a copy grade the term commence is a term of art and when this decision is read along with federal rule of silver procedure three there is little doubt nd in regards to suit after a copyright application has been is not in bringing the copyright register in as a party if my brother's interpretation of instituted is adopted the copyright register would only be people brought in as a party to the suit after the contrary issue was adjudicated on the merits lastly as far as the term instituted mcneil versus united dismissed ben basically for failure to to meet the precondition it's analogous to perhaps to a failure to exhaust what is your your honor plaintiff has actually refile the suit in the district court it's the a tell us position in that district court that it's a risk you got to issue that the decision regarding the copyright was decided on the merits it was decided on its won't be six motions to dismiss that was submitted by the alleys and based on that it is the appellate position that the there is the raise could or could not be the subject of a different appeal i understand as to be a diversity case and not cure away a federal question case and so it was appropriate for the district court to go ahead and address the summary judgment motion as did the state court claims with respect judge lynch and may have misled you in our conversation don't think it's a diversity and well mr mcglothlin answer the question thank your honor i would i would agree with judge that this is not in diversity case ok mark because in massachusetts we consist of the we of council district courts that when a federal question case when the federal queen on which federal question jurisdiction hinges believe there may have been a mention of one of the hearings that chairman wanted to retain jurisdiction of the state law claims but there was no formal pleadings as to that i did he say why i don't believe so you honor ok i think they're obviously this has a long procedural history and there's other cases in federal district court with the same planes if i  discretion it should be pointed out that the appellant's never asked for her admissions to be withdrawn she submitted two motions the titles of the motions do not suggest that she seeks withdrawal of the admissions additionally nothing in the contents of the motion applies the federal rules of civil procedure thirty six dollars b two prong standard based on that the court again would have had to sue a spon it seems to me the requests for admissions don't necessarily dispose of the version claim unless unless you take the position that massachusetts law says they can be a liability for understanding of monsters if you take my property and use it i think you may be liable for conversion whether or not you know that it's my property yes your honor in i believe this is addressed by the st element of conversion which is the defendant intentionally and wrongfully exercise control into minyan over the personal property i believe in  analysis of whether the hell he knew of the copyright or not to the wrongfully and intentionally portion of that st elements it's not  judgment motion no evidence of ownership was put forward in addition to the issue of and now judge hillmen didn't rely would seem to me that there was some obligation on the part of the plaintiff to put forward some evidence of ownership yes your honor to that point it seems illogical that the copyright infringement claim could not proceed because there was no evidence of ownership of the registration in the state law claims where ownership is the key issue could proceed ok there's two points i want to make on the corporate claim the st is that the court the court discusses the discretionary nature of it again we think that it's based on a misreading of th estate for the court says that the claims quote must be dismissed based on for the state at the direct quote of the district court is that they must be dismissed that's a misreading of the law they the court thought your argument wise that the district court had discretion to issue a further stay i did not understand your argument to be there was no discretion that the district court was required to issue for their stay that's correct your honor that's exactly right your statement that the district court was operating under the there's where the copyright registration was obtained over three months the fact of date of registration it doesn't go to the question as to whether a a stay was requested there was no stay requested and i answer that your honor yes  the judge katzman i think i think that's correct it doesn't go to that question but i think that shows the district court thought it had to dismiss and as we've shown in the briefs in those situations a t concludes argument in this case attorney graham and attorney mclaughlin you should disconnect from the hearing at this time