which were briefed in the parties original refed and then an additional issue that was raised by the court is the subject of a letter brief the two primary questions are number one whether if you are the real party in interest if we agree with you that that's an a point that needs to be addressed should we address it or should we send it back to the district court tutor i think this court should address it i think it's a pure question of law that that can can and should be addressed here or do you thirty three issues you're going to argue the three issues are are whether a partnership was in fact formed if a partnership wasn't formed i don't think there is a need to address any other issues if a partnership was formed then we have to look at that secondary question of whether the partnership is in fact a real party such that the members may or may not destroy diversity i think only thirdly do we reach the courts suggested question of the potential federal question of the jurisdiction under section eight hundred nineteen i think that question only comes into play if we find that there isn't fact a partnership the partnership is a real party then we've got to look well does that make the f d i c such a party that it might invoke federal question or even federal agency jurisdiction in looking at any of these questions i think the standard of review is very important and is worth at least a moment there was a lot of dispute in the breeze about whether this is a factual attack or a facial attack i think we can assume at least for purposes of the appeal that it was a factual attack the defendant certainly didn't come in and say there's a problem with our pleading what they did is they came in and say here are additional facts that if true destroy diversity ok so here's my question i think everybody agrees if there was a fact to be found in other words if there was some accusation that mr x said something and he denied saying it that that would be the district court would make that factual finding we would defer to that unless clearly erroneous to me the question is is the so i think everybody says look this is controlled by these two documents so we can all read the documents there's nothing to really rectify on that so then i think the dispute is whether the weighing of those documents and these five factors in all that is a question of fact or a question of law so it's can you focus on that partly and i think i think it is a question of law i think there is some helpful authority from this very court about it obviously as your honor alluded to contract interpretation is always a question of law this court can do it as well as any other the minute maid case which we saw in our brief i think is instructive when it comes to formation of a partnership for that analysis of whether a partnership exists that was a case it's a relatively old one it's from sixty one i believe but it's one where the court was looking at an agreement between two parties a business arrangement that the court looked at the written terms of the contract and also the course of conduct of the parties and said all right the course of conduct really isn't in dispute the terms of the contract certainly aren't in dispute that's a question of law so when we look at this we looked at it not as a fact finder but as as a court of law applying the law to the undisputed facts and to the language of the contract and in that case i think it makes clear that the determination of a partnership under that in that circumstance which i think is the same circumstance we have here is a question of law and something for review to know that this court can look at and make the determination if they have to though i don't cry and understand why i'm weighing the different factors  does not at least make this a mix question of law in fact i certainly see the question and i think it's an interesting one but what what what this court has held before and what other courts following those same line of cases have held is that if the facts are undisputed then the the conclusion that you draw from those facts as to whether a partnership exists even if that includes the way of the factors is a question of law and not a clearer which i can understand but if that's the texas flow and if that control moves where are our judges nor does it come true but i think federal law controls the standard of review here because in all of these partnership cases we're looking at i mean the partnerships standard is always under state law where it's texas or louisiana or alabama or wherever state law is going to define what a partnership is the standard of review in all of these cases has been the federal standard of review contract but that's correct the only and on can see there's one piece of evidence that did go outside the contract to an extent which was a web page that talked about the terms of the contract and the reason why that was introduced it was argue that that was evidence of an expression of an intent the district court held it was no evidence because it was just a web page is a casual usage and it only dealt with the f b i sees opinion of things and not anybody else's but other than that we're still talking about the terms of the contracts themselves there's no other evidence as to whether a contract sorry whether a partnership was formed or what the terms of it might be you know the focus of the whole arrangement where the where the district court really focused and where the apple e really focuses is this question of control which i think if you look at i guess i'm wondering how we got to the five factors since i'm trying to figure out how this is an association of two or more persons to carry on a business for profit is owners and this is a collection suit on no i'm just having trouble with what the business is so how how do we get all wrapped up in these five factors without even looking at the actual definition which you cite in your brief of whether this is even a business that they're co owners i think it is a problem i think it's a huge problem i mean i think that's one of the that's one of the factors that i think in every single case is one of the most important as to whether this is in  business whether this is a business for the pursuit of a profit and the district court looks at it and says no it's not but that wasn't the point of this anyway so we can disregard it i don't think you can just look past it if the whole point of any other partnership is to make money this isn't a partnership to make money it's a contract by which someone's going to get reimbursed for a loss it's more like a war actory you go hope you make money demurred well yes i think so ego bought these notes at book value as part of the assumption of the failed banks assets they paid the value in this is the way the f d i c apparently does things these days they pay book value and then it turns out if you've got a loss on it later and you comply with all court that the f t c really was a partner of the l l c or a member of the you know where the district court the way the district court followed it as i understand it is the reason why i'm thinking that is because the district court even went so far as to say when it was looking at the expression of intent to say well there was no expression of an intent to be a partner from b b and t and certainly not any from eagle as to whether we're agreeing to th like that i mean it i i i don't know i know that i should we're directly questions if you agree with me but i'm just having trouble because judge o'connor's a very smart guy and how we even got where we are is as i'm having trouble grasping because it just seems like it seems like we're talking about duck when we should be talking about elephant i mean that's just how it seems to me and so i must be missing something so that's what i'm trying to understand course judge things i do agree with you but i think i think where the district was headed with it  think what you'll hear from mr henderson is that the business was collection on a loan of questionable value and the idea is the banker book that everything's a business any time you do contract with anybody for anything  any kind of continuing relationship with that person in time you can inspect the books of somebody you're doing business with you're in a partnership and that's scary to me it is very scary i know what would be the limiting principle you would ask because we do have these five factors the co around control if we decide we have to give deference to that what where would you and where would you announce a line that we could give because you know we do have these kind of vague relationships that we find as partnerships and so on where is that  line that you would announce that you think is the right line i think what you have to look at is that control factor i think that's the big enchilada and i think when you look at the contractual language that the district court is relying on to say there is control i think the district court just missed the mark and i think those on the standard doesn't matter because you're saying as a mark on facts i mean even even if we're supposed to give deference to the fact finding you're saying that's not control as a matter of law i think it's not control as a matter of law because it's you when you look at the fact what becomes control of the ingram case from texas is the seminal case of read dozens of cases since ingram and they all decided back to ingram but ingram talks about control meaning the authority to make executive decisions about the business  things like writing checks from the company bank account managing the assets or being able to dispose of company assets control over books and records not just access to books and records that's what control is in the context of a partnership and we don't have any of those here what the defendants have pointed to is the restrictions and the rules by which eagle is supposed to administer these loans but the whole purpose of having rules in place is to put a limit on the circumstances under which the f d i c actually has to reimburse legal fleets what is going out there and take you know a fall on purpose and then saying ok we are we just kind of gave away these loans and settled for nothing and now you need to eighteen thousand comes into play if the f d i c is a party at this point but from our perspective the f d i c is not a party it's not even a part of a partnership that is a real party so to get there we've got to say there's a partnership the partnership is a real party and because that partnership is a real party and because the f d i c is a member of the partnership it destroys diversity but i don't think even if all of that is true even if all of that's true the f b i seal still is still not really a party it's just a member of a real party in interest so as much as i'd like to say i don't care about destroying diversity when i'm asking about subject matter what i struggle with is how it is that the f d i c becomes a party it's certainly not the way we played the case and i don't think there's any shade of the way the defendants are setting this up that would make the f b i see if you file a supplemental letter that agreed with the idea that they were a party in any capacity or we did not we said if they are if they were i believe our argument why letters were filed not really in books and who the lawyers were one of them said oh yes i mean if there is a partnership and of course there are party in any capacity all this stuff and we can amend our pleading and all this and then the other guy said no no no they're not a party the partnership would be the party and i thought it was squared up this way well what we said and now you saying something opposite to the letter you well and i don't mean to confuse the issue out of time but i'll answer briefly i think what we said was we don't think we get there again you said that but then you said if it is a partnership and there are a party do you have this will in any capacity was that you know actually eloquent on any capacity or in so you said there was federal question are you saying there's not i think  i don't think we ever get there i don't think we ever get there if i don't see how the court gets that far because i don't if we affirmed judge o'connor on the partnership then what is there is there not federal question jurisdiction if you have farm on the partnership and find it's a real party fine it's a real party then then we have to answer the question of does that make the f d i c a party in any capacity and to be quite honest your hon real part of interest is that essentially what you want to do that that's not right your honor your honor i think we can under the circumstances we have where this all turns on contract interpretation and perhaps other undisputed facts it's a question of law that this court should answer the district court impliedly made the determination that this partnership was a real party we believe that conclusion was in error and should be reversed as well so what w partnership that's my premise if we agree that it was a partnership i don't we still have a question of whether you go with the real part of the interest of the partnership or the real part of interest the question of whether the partnership is a real party of interest is before the court that is something the district court decided didn't give much analysis but it did make that decision that this court ought to reverse the question of whether an eagle is also a real party has never been really contested the only thing that the defendants presented in their motion to dismiss was here are additional facts that show involvement of the f b i see if we show that that's simply incorrect then we're back where we started you go as the owner in whole or in is entitled to proceed with the has been twelve days ago and you don't remember what you filed i do remember your honor ok and what what do you do when you can't do that you can just show up in just in and say you don't even know about a letter maybe your opponent filed it when you're the one who feel i'm sitting on your firm's letterhead and you know it's fine for you to say you discovered a case in the interim that shows you're wrong and that's honorable but what you're doing and in my view is quite dishonorable to come in here and now make the opposite argument to what you found with this court without explaining yourself and in fact acting like you don't know what i'm talking about to where i have to go look up your letter now could you please explain that to me i think what we mean by the argument in the letter is that if there is a partnership and if the partnership is a real partner then the f d i c does have some capacity in this case and perhaps it does arise to the point of federal question jurisdiction or a federal agency jurisdiction i think it's not the strongest argument i don't think we have to reach it but i think it's a fair question the argument that we obviously made in the district court was that the f d i c and the b m t were partners in a partnership relating to the failed assets of colonial bank this is the reason we argued this is because prior to these asset purchase agreements or purchase an assumption agreements in these large share agreements the f had participated or had formed l l c whereby they sold off interest and became members or co members with the private to collect the loans and in this instance they've put a little twist on it by doing this in in the form of a loss share range went whereby they contractually agreed with a new bank to come in to preserve the integrity of the banking system to keep the deposits in place bank you come in not a private party bill collector or  purchaser but rather get a bank assume the assets the deposits and then when it's talk about these the notes these other assets that we want to recover and that's the law sharing part of it where the f very complicated agreement says we will reimburse you bank up to a certain amount for these bad loans and based upon those cases about because now the l l c cases there's several cases cited in judge o'connor's opinion and it was cited in our brief that talk in terms about subject matter jurisdiction if an l l c is not a corporation l l c member if the f b i sees a member in that then that destroys to diverse subject matter jurisdiction because they have us the f d i c is not a member i'm sorry not a citizen of any state so by analogy i argued that this is nothing more than a partnership and then i guess i allege texas law applies there was no argument made in the in the district court in judge o'connor adopted my texas law analysis so texas law applied you applied the five factors that he applied he came up with to under texas law the determination of whether a partnership exists is a fact question if i was in texas state court in federal court i would have to submit that jury that those five elements as a jury question and therefore it is quintessentially a fact question and therefore is eagle and f d i c in association to carry on a business for profit is owners involving my clients there was a no i mean i don't know how many notes were involved with colonial bank assignment to be the and i'm sorry the f d i c assignment of i was s record but there's no endorsements on the note that i can see there may be an issue as to owner holder status but that's maybe a an issue for trial let me get back to something that you go over in about the texas law that pain trying those are facts what i read in the district court and what i continue to believe is because some of those are in your favor and some are not  that what the effect of the fact findings of those individual discrete elements non exclusive lives whether the result of that produces a partnership or not even under texas law is a question of law are it worst mixed question of fact and now have a how do you get me off of that  well the judge o'connor did give us a little bit of insight as some of the factors are more important than others such as the control of the jury couldn't that but when you get a jury verdict that says you have an instruction that says here are the five elements and there would also be an instruction under the texas business organizations code it is you may find the existence of a partnership even though the parties did not intend to form a partnership and that's that's also business organizations that's statutorily and great but in that jury instruction you give them those elements consider these elements and then other or or however the instruction would be and then you get to said was there a partnership for in this instance judge o'connor said yes but where i'm i don't know whether i can get my hands around in what judge o'connor did he made actually specific findings or he actually considered each of those elements and i'd submit to the court once the court made those factual findings are finding there's a partnership i think that that's enough  and now but my problem with that is we accept has not clearly erroneous what you're doing connor found on each of those elements but i would think whether it's a  jury and it's a matter of you know the or it's us on appeal from the from the bench that whether the bottom line is that given his finding that does or does not constitute a partnership is a question of law i think where the question of the law would be is perhaps if the evidence is legally insufficient or otherwise legally infer to even support the jury's finding or judge o'connor's finding of a partnership and in that regard what we asked for was a should the court find that evidence is legally sufficient accepted as evidence there was a no other f a q filing that was also put into evidence there was an evident there was an affidavit by my client which the the court declined not to consider  discretion not to consider but i believe that this is just the tip of the iceberg because i will believe there's also communications back and forth between the parties that would substantiate my argument about there being a partnership if there if the court finds that the evidence presented was legally insufficient to not support judge o'connor's the night asked to remain and allow us to continue on with washington get another by now because we never got we never got the first bite of the apple on that because we asked for jurisdictional discovery that was hotly opposed by opposing counsel i asked for an eviden of what you would produce yes yes and that was in my original motion and also in my reply i asked the court to do plays and they said no what's going to stay we're going to stand pat on the doc fundamental here on this partnership thing if now let's say we were to affirm judge o'connor on the finding of partnership now you get a client similar the f d a says man i do not want to be in a partnership but i want to sell these notes and  be able to sell them unless i can give them some sort of guarantee of reimbursing and i don't want to just write them running wild you know settling notes for two cents on the dollar how can i structure this to avoid a partnership what would you tell them i would tell them to put in those safeguards are those mechanisms such as a very threshold one put a provision in your agreement that notwithstanding anything contained here in the parties do not intend to be a part you have parties you have these elements out there you have the five elements then let's get together let's make sure that i don't have control rather i just have the ability to inspect records but i don't have the ability to control whether or control that pushes it over the edge despite the absence of several factors as found by judges well i don't believe the control of the books that's one example of one of the elements your honor i'm don't mean to say that's what i'm hanging my hat on there is on page of my brief i'm sorry the record on pages four ninety five through four ninety nine or a listing of in public points of all the elements are indicia of what i believe absolutely dead are up and so he did not find an agreement to share profits you said there was he didn't find an intent to for partnership you said there wasn't so this list that you had that went on for four pages i found very difficult to parse because it doesn't line up with what judge o'connor fan so the only thing he found that in my opinion gives you any argument here is this control issue so that's why i'm back to the agreement the agreement will give them control there's no evidence of some other control that they came barreling into doing things so what in the agreement gives them so much control that it overrides the absence of intent the absence of ownership the absence of an agreement on profits the control has to do permission but this is only if they want to collect on reimbursement right if they just decide to sell these notes and they don't want to be reimbursed doesn't matter i mean the bottom line is if the i c doesn't want to reimburse people for not kind of doing their job and so i don't know how else the effort i mean i don't really know the f d i c can protect themselves without becoming a partner under your view of the world well i'm just trying to understand that well under the overeasy under the you know when you could when the f sold notes and this is they sold notes for twenty cents on the dollar ten cents on the dollar and they get paid for that in the note be indorsed without recourse to warranty have a nice life now and this is where the partnership comes in where they're saying ok i want you to do this i want to sell the notes so all of horizon the rising tide you make money and we will keep down our losses for the failed institution and by doing so by exercising that control instead of just a blanket endorsement they're saying there's strength in the strings attached or you have to do follow certain procedures you have to provide us with access to the books and records you have to partnership not an end not not are arguably an individual part is that right and when that make a difference i mean if if the partnership a the fact that there's not a partnership party named in this lawsuit or a partnership party that's its point it's the plaintiffs the fundamental problem there is they disagree it's a partnership and they never they did did not suit in the name of a partnership for an entity that they believe does not exist so my right in order for me to establish the partnership i have to legit in say no that you are only a nominal party undertakes under partnership texas partnership law the partnership owns the property the partners don't have an interest in partnership property so if the owner holder of the notes is the partnership then i disagree with the premises started by partner an interest if the other partner is only a nominal part park is that not right i am the partner under the texas business organization code each partner in texas partnership is an agent of a partnership that's clear on the statute whether i do i don't know whether a partner by himself can say on behalf of the partnership i understand if of action where the partnership refuses to comply with the demand of a partner to go soon because of the partnership but generally if there was a partnership it should be the partnership entity it's an entity theory state texas is the partnership entity has to assert that cause of action and the the the interesting thing in that is far as applies to diversity as i was thinking about it if we have a partnership and i want to be in federal court i'm plaintiff five for whatever reason i want to be in federal court then i have three partners i'm going to pick the one that's going to preserve diversity and i'm going to have to use c on behalf of the partnership and i think that goes to where we have to look at the evidence that any partnership is in fact the owner of holder of the note except by your argument that just by virtue of this relationship that they have that they formed this partnership and therefore somehow should be in this case assignment to ego was a loser because of the control the f d i c exerted on that note and it is inextricably intertwined that the partnership is the owner of the no or argument is the owner of the note and therefore that's where it's not only a defense that i could use down the road but it's also a jurisdictional issue they're the real party in interest i q three more minutes to you need thank you ron i'm i want to make a couple of points and i i didn't finish my thought with judge haynes she asked about the control issue i believe judge o'connor said there was also there was no dispute about a sharing of losses so the defendants did not make any kind of and i think by definition the last year an agreement that was another element that supported the finding of a partnership to control the last year the judge o'connor concluded there wasn't an agreement to contribute money to the partnership and also i believe he concluded that there was not agreement similarly agree that the f t c doesn't have a skin in the game if if there is an issue with the note of the collection there of because i think if it's a notice collected or there isn't or perhaps my client doesn't have any money how does this go back through gristmill as far as losses or whether this asset triggers a last year or whether they get reimbursement for this asset which they paid for under the law share agreement they may very well have an interest in the head my my response to that or these all these relationships or all these other lawsuits my point is on these facts and on the record before judge o'connor that was presented to him he made the decision court which is their entire allegation turns on the interpretation of a contract it's the purchase an assumption agreement connected with the shared loss agreement there's no need for any discovery beyond that if it is as they allege those contracts that create this partnership that's their position and i really not an ongoing business to have discovery about this case is the business of this partnership if there is a partnership well except  change the terms of the contract i don't know that that would necessarily well not necessarily change the term but you know how the pardon dealt with each other what their relationship or i mean i don't i don't know what lived i think they would have had to allege that there's something more to this partnership than just the contract and they have it i mean they they stay pretty plainly in their motion that this is a partnership that arises from the share loss arrangement are they claiming that there was a partnership with b b and t that they then were substituted as a partner in place of in some ongoing business or are they claiming that this document creates a partnership my understanding of their argument is that this document the shared loss agreement creates the partnership with what else do we need i don't think and honestly judge a card and that you needed anything else and i think that's the correct conclusion i don't think there's a need for any other discovery or an evidentiary hearing what are we going to say if the allegation is it's created by a contract aren't what is your answer then to the last the very end of the exchange between judge davis and your opponent was to the effect that if there is a partnership isn't it necessarily the real perjury and interest because it would be the person that holds the note that when that be the ri announces that was his interchange and i'd like your response i don't i think if there is a partnership we still have to look to see who's the owner and holder and there are other cases out there we saw a number there in our brief where you look at the year arrangement between say the trustee and the service or or the lender in the service or and you have to look at what the power of the question is in all of these cases is who's got the authority to bring suit who has the legal authority to go out and enforce it and in this case whether there's a partnership or not there really is no question that eagle is the entity who is the you know if we look we've got the chain of title in our pleadings that no one's contested eagle was not challenged like you know the converse lee if we had for example the f d i c bringing this suit or this theoretical partnership bringing the suit i think there would be a standing problem with though in those instances because when you look at the notes and the supporting loan documents if there is a partnership that owens i don't know i don't know that i'm familiar with  i mean what you're saying is we have a lot of cases about lawsuits and we always say that's ok and you know they have the right to bring it under the documents and so they bring the suit and that's the end of it is that what you're saying i mean you don't look beyond their right if they don't if they're not the owner and holder the new lives on the merits right exactly and there's a great case out of this court last year called key bank we discussed it some in our briefing that's that sort of similar it's not a service or but it's a can it's a group of banks that hold it together but there's bank that has the authority to go out and sue and enforce and collected and bind all the other banks and the question in that case i believe it was a diversity case of do we have to look at the citizenship of all the other banks or do we just look at key bank and the answer was we just look at key banc because key bank is the only bank that's got the authority to be here nobody else does and so nobody else matters