the standard of review and this particular appeal is the no vote which is important in this case because it gives this court the opportunity and reviewing the record with a fresh set of eyes to hold that in fact a waiver took place by vision thirty three of the form selection clause in the contract and to send it back and struck in the court without further proceedings to hear this case going forward the waiver test as your honour's know is two prong number one some conduct that was not necessarily emphasized in the brief and the st conduct i'd like to highlight is in the filing of the motion to dismiss by vision thirty three dollars on the merits of the case and  raising at that time the form of convenience or the form selection clause in the contract added is particularly important your honour's in this case because in its motion to dismiss bold california substantive law controls ses breach of the contract action now when you look at the actual contract and the provision that vision is relying upon to say that california law controls that found in paragraph eight of the contract which is attached to the complaint and this paragraph eight dollars under government governance and this one sentence and here's what that one sentence says your honor this agreement shall be governed by construed in the courts of the law of california and contained within the same sentence and shall be subjected to the exclusive jurisdiction of the courts of the state of california so in filing its motion to dismiss obviously vision thirty three dollars looked at that paragraph specifically chose invoke the st half of the sentence of that paragraph and obviously specifically chose not to raise the issue of the exclusive jurisdiction of the courts of california showing demonstrating to this court and i think to any court that it made a conscious decision not to go forward with the form selection clause and in fact waiving it in addition to what do you think vision thirty three was trying to argue well they can't have it both ways your honor they were arguing that they wanted california law to apply and within that same sense they're asking the court to ignore the form selection clause of california so i think it's obvious that they're arguing we want california law to apply but we don't want to be in california otherwise they would have quoted the whole sentence and not half the sense of so i think the court can  lean from that that there's a choice made by so it's not just a waiver that will come back to a later no i think the court concluded they made a conscious choice not to invoke that at that time at the very outset of the case where they're moving to dismiss substantively the action in addition your honour's in tab twenty one of the appendix appendix it is a the party's joint scheduling conference report and proposed joint scheduling order and as i looked at that a little more deeply your honor in preparation for this morning the to last page of that is attachment see an attachment see is entitled election to jurisdiction by a united states magistrate judge for final disposition motions and in that attachment see there is the signature of counsel provision thirty three again clearly indicating that they are electing jurisdiction in the court in the southern district of florida another clear and obvious indication that they were purposely waiving it and willing to go forward s and this now of course the brief is replete with other examples which are only briefly mentioned but they're still important nonetheless they order setting trial actually set by by her  honor judge cook set a trial date and this will relate to the prejudice that i'll get to in a minute if we had been able to go forward your honour's this case would probably be over by now trial was set before co in february of this year cove it as you all know hit around march and so we had a trial that in addition we labored at actually picked a mediator we picked  location for the mediation we picked a time for the mediation and they were the mediation all parties agreeing that we would have a mediation on october nd two thousand and nineteen it wasn't until  your honour's that the court as you know to a spot day decided to invoke this clause d that kind of took everybody by surprise and then vision thirty three at that point seeing the handwriting on the wall and taking advantage of it was only after the district court to a spot they order did they then filed their be elated motion to dismiss for form not convenient so i think the st prong of waiver is clearly met report can because the parties had indicated to the court as i mentioned that they wanted to have this case tried in the southern district of florida when we disclose our witnesses in the pre trial disclosures the lion's share of the witnesses were in miami dade county and broward county because vision thirty three have an office in broward county which is just as you know just north of miami dade county  convenience and so when we had the hearing we kind of had to explain to the court that this is not jurisdictional this is a venue situation here but nonetheless the court went and so the prejudice that results then i take the language from your davis case which you did not publish that authored earlier this year and in tw twenty where you found prejudice to the litigants and held rather than pressing the arbitration that case was an arbitration clause but they're treated the same for the purpose of waiver  rather than pressing the arbitration provisions from the outset the sewer company had offered no reason why it was unable to do so from the outset why they couldn't file that earlier and the court said in doing so the sewer company forced the families to spend resources opposing the original motion and contesting its appeal and then finally the court said instead the sewer company chose to wait to raise know that there has been a waiver and should read man with instructions thank you thank you very much ok mr miller i think you're on st for vision thirty three and then we'll hear from mr star that the waiver analysis is similar to a waiver of arbitration cases that this court has considered and the two elements that the courts considered they're under but there are some important differences which hopefully i'll get five months from when vision was served with process to when the motion to dismiss or for non convenes is filed so there's no dispute over what occurred in that five months but we have to look at what the significance of the actions that were undertaken in those five months to find if there was a substantial invocation of the judicial process in the cases make that clear including the davis case that there has to be a substantial activity  under twelve b six for failure to state exclaim that is a motion on the merits because if you win and if the complaint is dismissed with prejudice at some point that constitutes motion to dismiss for instance in a contractual finding stating that in this case we just stated simply that there were not there was not adequate pleading as to what specific parts of the contract were allegedly breached and i think that that would go to i think believe what was called a perfunctory medicine to dismiss in the hanssen case as not necessarily evidencing waiver so we never asked for the dismissal with prejudice and in the the movement in that case which was an arbitration case filed an appeal of that dismissal which of course as we all know is not is not available because it's not a final decision and so the court you will find waiver and i think that that's a theme in you know most of the cases cited in the briefs is that you have court finding waiver in these arbitration cases where the case has been going on for a year where discovery significant discoveries been undertaken discovery has closed there's been a dispositive motion filed on the merits and in certain circumstances which i believe in the hampton case the movement didn't file the motion to compel until after they lost that dispositive motion and which we don't have here and i won't belabor all the other actions that took place that believe those are addressed adequately in the brief those are deadlines required by the court upon filing of the case and you know you have to comply with those and further in this case if you were there to make sure i understand your position positions are you saying that just because ms summary judgment motion had been filed at that point that waiver couldn't occur no your honor i'm not i'm not saying that i'm just  pointing out in most of the cases that are cited in the brief for a waiver was found things like substantial discovery close of discovery dispositive motions were present in the court found there to be a waiver based on the totality of those circumstances here there was a motion to dismiss filed and i went over that there were initial disclosures traded election a magi strate a mediator was selected the cases cited in the briefs detail as to those things not amounting to waiver on their own so i believe the court has to take a look at the tally of circumstance there were there was discovery propounded but it wasn't the type of discovery that the glass miller and martin case discusses where there was voluminous paper discovery numerous depositions discovery had closed here there were no documents produced there were no depositions taken much less even scheduled so that goes to the nd prong of the analysis regarding the prejudice prong and here i think even if you did find that there was substantial litigation activity which i don't think there are compared to the other cases i think you'll find that there's no prejudice and that goes to a point that i'd like to make regarding the arbitration cases discussed where there was waiver found of course in arbitration k mr miller before that before you get to that point let me ask you a question please if you had if you had lost you're you're on a belief that that it could hear that well what's what's a good policy reason for that result that why should i as a matter of and i know there's a multi factor test but i'm asking you this question abstractly what is the policy reason for not requiring a litigant to take advantage or of or invoke a form selection clause at the earliest opportunity in in favor of finding a waiver but here it was it was simply a motion to dismiss for failure to adequately proof plead the breach of contract case and asking the court to dismiss without prejudice because here we're not we're not looking between an arbitration forum and as usual forum we're looking at two judicial forms so really the gravel men of  issues associated with that so even if you did find that there was substantial litigation activity which i don't think there was there was no prejudice because they would essentially be in the same place that they are now in the litigation where there's been no answer filed the motion to dismiss for failure to adequately plead the breach of contract claim was never ruled upon so really nothing has happened in the case there's been a five  substantial litigation activity in two there's no prejudice shown here or at least substantial prejudice you find waiver and i believe i'm out of time unless the court has any more questions all right thank you very much mr star been initially held to be bound by that we would not have sought to invoke it because this case did proceed for many months through significant discovery in florida and my position for my client is that we were ready to get this actually on the merits we had filed a dispositive motion to dismiss arguing not just that there was a failure to state a claim but that the claims against my client were barred on their merits by the contract proceed in full in florida we find ourselves my client finds itself in what i call a procedural conundrum because if the case is essentially broken apart find that in fact there was no waiver and that the district court's opinion to send the case says to thirty three dollars to dismiss that case is potentially requires his power to sue version thirty we need that s p p needs to join vision thirty three to that matter we can certainly do it because we have a separate contractual provision with vision thirty three dollars that contains a pennsylvania choice test one is just a two party lawsuit deciding whether there is a waiver and now this court because of the president as they can consider things that were actually brought up by s a p s counsel and that are that's the potential of with they now as part of this court is not bound by the two prong past but can also discuss public policy factors from the things that i just mentioned there and in fact councils right there is a real possibilty of multiple cases thousands of miles apart with all the same witnesses and that certainly factors that this court can and should consider in connection with  court that vision thirty three can't have it both ways they can't seek to dismiss go through all of the pretrial discovery mediation and then if the motion to dismiss deny they go oh well now we're going to raise our motion to dismiss based on the form selection clause that's prejudice that's bad policy and that should not be allowed the bottom line briefs and for the reasons that i stated here this morning i respectfully request that this court find that a waiver has in fact taken place that there has been prejudice to my client's out these power