the city of new orleans saw the new contract for its auto related debt for what human food in the parking board's professional account management also known as pam did for that and i think we best addressed and if there are two different buckets really there's the new orleans bucket which you just addressed your honor then there's a bucket of anything else with regard to new orleans and the district court i'd recognize this and it's footnote three the first thing that comes out is there is a question what's actually happening in new orleans and s p has recently been saying that they're doing all the steps but if you look at the record here including our cease and desist letter to pam we actually did an investigation and it everything that's actually happening is happening in new orleans but if you look at our cease and desist letter which is the appendix one eighty eight eighty nine we actually did investigation before we told them they had to stop infringing and one of the to tell us that they do everything in new orleans i just don't think that's factually accurate you also have the robinson declaration which they submitted which says that pam was involved and  was retold the district court s b actually told us they did not do the deposit steps so so here's the difference between the two litigations and why new jersey should go ahead it doesn't matter what's happening in new orleans it doesn't matter how the slicing and dicing these process steps it doesn't make any difference if the city's building some cars or pam's doing it or s p it doesn't matter who's doing what steps it's covered in the jersey because it pam is responsible for all of it if pam is doing some of the steps we've got them if s p is doing the steps we've got them vicariously if the city is doing some of the steps and the contract of the city indicates that perhaps that might be the case as well so ok we've got no matter what's happening in new orleans we've got them in new jersey thanks to you said it's not the same activity in new orleans first as new jersey is that what is that based on is it based on is accused or is the face time is the direct infringement the same and if you can if i said that i misspoke that's the activity whatever's happening in new orleans for the new orleans bucket of this infringement allegations it's the same for both case but the difference is that the new jersey kid we don't know who's doing what steps of the process we think that the city's involved with some steps doing some steps maybe flushing the fine well actually deposit pam is doing other steps in fact that's what our investigation showed and aspi is doing maybe other steps that's what we think and our investigation showed that it's not just ask p d so that the case in new jersey because it's against pam no matter what's happening we've got to cover but if you look at the case in new orleans with just as p as as the the infringement defendant unless s p is doing every single step of the process if they're not doing every step of the process then we don't have direct infringement that entire case is a dead end because we can't address the infringement so that's why the case in two words will be what is the answer to cases where everyone think that what the way the courts look at it including that wilton supreme court case you have these two cases look at that why is judicial ministration that's what the supreme court says which one makes the most sense to go ahead with and here if we go ahead with the case in new orleans there's a real distinct possibility and i think a very strong possibility that's going to get nowhere because s p we don't think is doing all the st two areas of law the first one was a district court telling us that we had to sue pam we must soup pam in new orleans as a compulsory counterclaim that was just legally wrong thirteen through thirteen just doesn't allow that the second abuse of discretion is saying that pam is a required party under rule nineteen and those two of course combine for the district court to tell us we must superband there so that was a legal error that's an abuse of structure and then there's also of discretion in that there is a clear error of judgment in the district court not recognizing that's the difference between these two cases and their scope because only the new jersey case is going to resolve the definitely resolve the infringement newt and new orleans if s p is not doing all those steps in new orleans it's a complete dead end that case is a dead end because no matter what happens we haven't got a case for infringement down is now before the new orleans court your honor the reason that happened is because in this order that's under review the district court said that if we have a claim against pam we must and this is the district court's word twice and they emphasize the word must you must us so at that time what i'm facing is two things i have a federal judge you just told me that i have to if i have a claim against pan i must sue them this from pulser counterclaim in new orleans and i'm also facing a deadline i have a deadline dad counterclaims so i have to do that i have to do that i can't take that chance that i'm going to lose a claim against pay like i had to sue them in new orleans there was no other choice so that's the only reason the pams down there is because of the of law with the judge made new in new orleans saying that it was compulsory gonna blame it's clearly not before your time and so can i just ask you just a question because we've got the next appeal coming up it's not on one no one if we were  for the next argument but if the conclusion is that is one of one invalid i guess it really doesn't matter what court were in i would just footnote that and that i know it's statistically unlikely but just in case we go up to the supreme court by that case it might become important but you're right pam's always been our target and the reason is because we think they're out there doing this and it's not just new orleans the new jersey actionable catch anything else that pam is doing we know that pam is out they're acting on this they you know it's under the contract you've got the government that various parties that are involved and then here representing that we know there's something more going out there and going on there are going to them i was  and even mr when we're different we don't know i mean for all we know that could be happening in california that and that might be from the more appropriate venue for the rationale of the new jersey so even if we give some credence to the fact that you know that they're out there doing stuff why does that get you into new jersey because new jersey solves them all well we don't want your honour's we don't want ten different litigations across the country gives ten different subcontractors the litigation in new jersey will solve them all because pam pam is the primary contractor and in new jersey we have it we have it covered and one just quick point i have forty five seconds but you say you did sounds then your honor but there's at least some circumstantial evidence of this i'll point out that when we all know an offer for sale is an infringement so we've asked and we've asked and we've asked we put in our brief the district court we raise it the district what we've put her brief here nowhere have they even acknowledge that question i mean they put in declarations in response to this motion they want to acknowledge the question now does that mean conclusively that they're in for in doing this offering somewhere else no it will be able to espied i can't pursue infringement against am another municipality's down there if it's only s p that's down there i don't think i can do that or is it you just said unless the district court was right in insisting that you have  not yes yes your honor only against our over our objection granted place an objection we don't think we have to do this it's wrong but now pam's down there but if pam wasn't down there and pam's not a party i don't think we can pursue other district court there is no infringement in new jersey the only thing in new jersey is where a pay lock is located and that i think calls to mind that decisions like the other genentech decision where this court held that it was not just an abuse of discretion but it warranted a mandamus to correct the proceeding of a second five action in california when the only connection to california with that the defendant or scuse me the the party claiming infringement had some of it personnel willing to attend personnel located there and very you know when we when we look at this case what do we have we've got everything about both proceedings everything about both proceedings concerns alleged infringement by the city of new orleans through its contractor professional account management and its subcontractor as people as corporation i know the council made the argument this district court didn't accept it there has never been any in new orleans may or may not even be involved they have said that judge it despite all the evidence to the contrary despite written declarations and affidavit saying and there is no other activity and everyone's been unequivocal about that the only place that certainly that s p plus offers this self policing of the election frenching activity is in new orleans because the city of new orleans asked us to do so and pam professional count management has also been unequivocal that it is performing that service by place that we're offering the alleged infringing activity is in new orleans but you're saying that the contractor was well placed that's absolutely true the judge absolutely no question about that and the district judge heard that too  but i heard the hypothetical that your honor posed and i wanted to address that i mean i'm sure there has been that statement but it's in the face of everything to the contrary and you know i absolute the court notice because it's been clear the panel is well prepared today that  anywhere except for new orleans and to date there has been no allegation other than just an allegation it could be happening somewhere else and that's in the face of clear and unequivocal statements by s p plus corporation and pam professional cop management that neither are performing it anywhere period except for nuance and we've been upfront about that from the very very beginning in fact when we filed the lawsuit in the eastern district of louisiana southern we said we are performing a service in new orleans pursuant to a subcontract it's in connection with a contract through professional management with the city of new orleans and so there was no doubt about that there was some statement made and again this morning at the district court that we denied that we  were you know providing providing activities that's never been the case and i think judge feldman recognize that there is no reason for us to say that we walked into federal court and bought our complaint saying we are performing all of these activities in new orleans pursuant to a sub contract and so i just want to address the hypothetical that your honor posed but i do think that district court addressed that below and i think you know the documents belie any belief that there's any perceive as being before this is all about venue and i don't think there's any real question but even if there was a question of your honor on whether it's being performed somewhere else i think this court has addressed that type of situation in micron technologies versus no zeid technologies i mean that was the whole point that if we if we allow someone to get past the first fall rule which this court sprint steadfastly follows then we allow someone to manipulate it by saying that there's something more or leaving out of a party as they did in this case or adding someone else then to say well this lawsuit is really different so the second least is the hammer's not a party and maybe but maybe the answer is well you can't unring the bell because your friend whether he felt coerced to bring him in or not felt like after the diet been cast he if it believe that a lawsuit against s p plus would not afford complete relief against pam's nationwide infringement then it had to assert claims against pam and so i believe your honor in answering your question that when everyone's been clear that good but it doesn't alter the analysis that we've said that we're performing the services it's not going to cause any prejudice so it's certainly no abuse of discretion in this case by the district court by the simple fact that pam was an initially indemnify them doesn't absolutely you're on and i did start in iran and i didn't mean that it's it's legally suggested i was just explaining how we got here you know because i think this may be maybe a little unusual i don't think it changes the result  but the the point of it was just i want to explain how we got here and the reason why we brought the action because there was no question that we were performing it as we teed up the issue and brought it to the district court so we could get a speedy determination because of course we've got a cease and desist letter and a lot of other threats that we were dealing with at the time and so that's why we brought it and frankly it was a little surprise that there be an objection to proceeding in new orleans where all of the alleged infringing activity is occurring by the works but those are the issues of the district court considered and considering where is the appropriate place for the action proceed the place where the infringing activity is occurring where pam is certainly raised no objection to proceeding in new orleans  are certainly were located in new orleans in terms of having employees there and so when you look at the personnel the activity the questions that would be at issue in any suit we were awfully surprised that there be an objection proceeding in the proceed and that's going to rule that's been followed and certainly i think clearly the case here when the only connection to new jersey the only connection is that a lockwood would perceive preferred to proceed there and that under this court's precedent four factors that we tried to outline those for the courts here i believe judge feldman went through the analysis fairly thoroughly in terms of where are the where are the employees where would the witnesses be located where would the documents be located where is the and for alleged infringing activity itself occurring every single point it's in new orleans and there was no reason that the court couldn't exercise their jurisdiction which it has been told that it should do and so it when we look at the authorities in this courts that say we would ask the court to affirm on that point thank you i'll just be brief in a few points your honor you asked about whether pam should have been brought in the first instance by s p in new orleans and absolutely yes this this would be a very different appeal had that happened because then that the new orleans case would have been able to solve whatever's happening with him but they didn't do that and so now the only case that can really handle everything is the one in new jersey where pam is properly party and you're right you're out of this is this is definitely not a traditional first to file case p is just a peripheral defendant it's not the primary contractor so this is the fourteen zero four analysis of the transfer i get that when you have mirror image cases you have the d j action and you have the infringement action but that doesn't make sense here we have different parties and the scope of the cases are different in this situation we follow wilton one of the united states supreme court wise judicial administration so we're going to that issue and mr alston said there's not really a dispute that s p is doing all the all the acts in new orleans well there is appendix at one eighty nine this is our first letter this is long before any of this ever happened long before any of these motions or any case in the orleans we did investigation and it says what the investigation showed the pay and the release of the boots those are two steps in our claims you have to do them to meet our claims the pay and release of the boot and you've got a number you call that number it's not aspi it's pam so if that's correct and the case against s p in new orleans can't address the infringement we don't have a direct infringement case they don't have a contract with the city there's no direct infringement and that whole new orleans action is just a dead end for infringement it's going nowhere because the evidence is that s p is not doing everything the new jersey case can handle it no matter what's happening lastly the national infringement we talked about that i heard you wanted to look at the when the declaration it this is their declaration expressly says cannot rule out the fact that we've you