the motion should have been entertained now it's not just elevating form over substance to say that rules are rules need to be complied with maybe the court wanted to get to see by not going through a to b to c i guess i can understand that but the litigation well what it did is it said that they didn't do all those things i see your honor in the last part i'm not quite sure that it did obviously it's mentioning to me it's dicta there and they're saying that we want  promotions conference and then they add by the way we have to do certain things here but they don't stab lish any rationale for it if that were filed as a motion i don't think that would be acceptable i could be understood as as  is is effectively a request for an extension of time because if we don't want to elevate form over substance well let's put it this way it certainly wasn't precise in terms of whatever request was made and you know what the court didn't consider that either because why wouldn't the court then issue an order that your response has to be in by a certain time usually that's what happens when you negotiate with the court over an extension of time you set a date certain it didn't happen of personal just action so everyone knew exactly what was going to happen but but there's a secondary component that is do it you can say all you want that you want to make a motion to dismiss a complaint but if you have a time limit by which you have to do that either court judges as you know have a have a rule that if you're making a motion to dismiss which is subject to time limitations which have to answer within a certain time you do not need to request a conference so that's the whole point of her s but but but to me clear letter counsellor you don't have to request such a thing under these circumstances so that the next move is what's next from their standpoint ok then we'd like to have an extension of time because we're familiar with rule  one we know that we have to respond within a certain period of time that didn't happen not criticizing count just saying it didn't happen i don't know why it didn't happen no one knows why it didn't happen whether or not this excusable neglect here i kind of remains to be seen and maybe the fact that they might have forgotten or waited for torah to do something which had no obligation we weren't sitting on any rights in any way compromising the apple e in this matter we had no obligation to do anything they had the respective partners in italy it helped create a foundation in italy and entered into an agreement in italy why should this be litigated in italy if the end an abuse of discretion to say that it should be litigated in italy well i think that when we come to the rule of form not convenience we don't get there yet before we start dealing with the concept of jurisdiction i understand it's a good point and in a sense in a sense look this is without criticism i was for the court even assuming personal jurisdiction did the district court abuse its discretion in granting a foreign on convenience motion i think that if we had an opportunity to perform some level of discover what we don't know is important here what we do know is less or abused its discretion in granting the farm not inconvenience most i would say at this stage of the game yes at this early stage because we didn't deal with the we didn't deal with the jurisdictional issues in a way that we thought and we believe respectfully they should be dealt with in addition when we talk about bringing on convenience we also have the other side of it that there's a thorough have to this transaction there really is there really is and one of the things i want to say to the is that at the core of this we have an educational institution licensed operating accredited in the state of new york which has branch campuses throughout the country we have a school in italy that goes above important and the constitution must be preserved but the fact is here is we have this school operating in italy telling americans and right brackley all over the world you'll get your american degree and the only connection the only reason is just how does saying just saying that there is an american degree or offering american their green from an italian university project show that the defendant projected itself into new york and something i'm glad you are required you know well but here's the thing he can't get the connection to oro new york founded by which is what they had a right to do but they want to bub and beyond that that connection is clear to any reasonable person seeing that any student who says you know what i'd like to study atauro here across the country but italy sounds great so all sign up and it says toro new york the assumption of the regional assumption is that this american degree is because of toro which is licensed in the state of new york an educationalist to an operation in the state of new york that's not far fetched so when the saying in american degree what's the audience  anyone they can get into that school to come to toronto rome whether they be in the united states or in foreign countries record and whether any new yorkers sign up for this no and that's time thing we don't know they say that didn't happen but we've had  opportunity to do any discovery that goes to the issue of also the revenue which i can go into and it's in the brief as to why we think substantial revenue is involved here but let's put this way if in fact they got application fees if in fact they got to wishin i know they were in operating but anything's possible i don't know that i don't know the impact but it's not just the impact on a new yorker and i think with the court got caught up with really what's what's the total impact on you up there even an application record  even an application it's a minute in the record there is not or there is not and here's the thing when this case started the only thing to lawyer hat was screenshots now they say the website isn't operating you could operate immediately upon your decision to basically uphold the district court if they wanted to but the fact is is that there is nothing there what i know is that you can make inquiries on that website and you can download an application  you can seek information directly from the website and bike by contact information or otherwise that they have a bike in your contact information the thing is judge i don't have all the because that's a poor choice of words when you talk about making inquiries as i understand it you can go to the website and look at it might not be enough i understand you just look at pictures on a website but actually there was a way of contacting these individuals who was a way of contacting them they had a contact information at a minimum whether it be writing e mail or otherwise i don't know logistics of it because we don't have all the information so you can look at it you can contact ok anything  one other thing judge one of those circumstances you could download an application and what judge cashman just asked me is what do we know about that now i knew that you could download an application send it in via e mail with an application fee or whatever sustained and substantial transaction a person of business and none of your answers to judge oh yeah suggest that the standard has been met i can only say that i don't have all the information believe came from tornado and they bring it back to united states will happy and proud ready to start grad school and they're told your degree is worthless and to morrow quite frankly would be responsible in my view or someone could claim that if they said toro you let that website exist you let that school advertise american degree which i reasonably believed was a new york degree and what i got from my money was a piece of paper that i cannot use they knew they were doing this they did purposefully they did it to enhance their position with an educational institution that does have branches all over the world and in the united states may not be harvard but it certainly is out there in play and they did it to take advantage of that and that's what we were trying to stop what we're trying to prevent going forward and we believe breach of contract tort transacted business we've given you all we have it is all we have and we've made the best of the record that we can but the overarching problem here is that this institution they good morning your honest john vincente for the ellie's i'd like to start with certain facts that are in the record that i think ripple throughout the legal issues here this dispute arises from an agreement an agreement for the establishment of a campus in a course of study in italy the aim of this course of study was to attract students from italy to issue to do a course of study and get american recognised american accredited degrees this contract provided for  not an arbitration it's not an arbitration because the appellant's brought the action in new york if your question is why is there is an arbitration clause yes we two trustees of the not for profit foundation and the reason behind it was that those two trustees the dispute arose when these two trustees met with an entity named who had agreed to finance this venture they met with them and they took pete owed the project they scared away and he could sign up they did it without giving advance notice to our clients and so the lawsuit in italy was against the two trustees for what's effectively the italian version of breach if i do cherie obligations to the foundation and you contention was that was not the subject of our that's not the set that's precisely precisely it is a concern as your adversary notes that at least under his interpretation that  the defendants attempted to associate themselves in a misleading fashion with the university based in new york and that there that that satisfies the standard that  had set forth that a party trans sax business in new york if it projects itself into this state to engage in a sustained in substantial transaction business so first that position is not supported by the record there was an agreement followed by a dispute followed by a may two thousand and twelve agreement to spell out what what the pelleas could and could not do the claim is that they breached this agreement two thousand and twelve that's correct and that agreement specifically provided for the a pelleas ability to use the to her own name and logo they're claiming it was not used properly this is a breach of contract action now to the question of well doesn't this impact turo into a rose in new york so doesn't this isn't this relevant to new york i say the answer is no because it's horn book law that the actions the existence of a new york plaintiff and the actions of a new york plaintiffs don't mess it don't confer jurisdiction by itself the plaintiffs the appellant's here put themselves into injected themselves into italy very the ones that reached out there are the ones that traveled to italy met in italy contracted with parties in italy to establish a campus in italy and signed agreements to provide for how things would be operated there and if there's a breach of an agreement governing that shows transactions in italy this that does not confer jurisdiction in new york simply because the plaintiffs located here  clause looking at this the website i think it's your contention that the website is not really directed at new york residents were people who are in new york who aspire to attain a college educations i write that's correct and we would maintain not only is it not directed at new york residents it's not intended for new york residents what in the record supports the website itself discusses the courses of study it talks about how the campus will be in italy it talks about how the drawing new yorkers i mean that's that's the question is it is reaching out to the talents already and no answers reaching out to new yorkers trying to get  there anything in the record that addresses that we believe that the context of the materials in the website indicate that what was really intended was for turo to attract foreign students to get an american degree  word says what we offer exclusive opportunities and this is a three twelve opportunity to study for a semester abroad or europeans yes to study in the united states abroad study in the united states abroad well it says what we offer which is not true yes another words those located in italy can study abroad for a semester yes it says a lesser degree of deference to the plaintiff's troy's bolsters the defendant's case but does not guarantee dismissal defend does not carry the day simply by showing the existence of an adequate alternative form the action should be dismissed only if the chosen form is shown to be genuinely inconvenient and the selected form significantly preferable and that suggests that there needs to be  more of an analysis from a district court is am i do i have that wrong so i believe two things one i believe that the district court actually incorporated the findings that would support the public and private interest balancing and second no i know i i understand but i believe that inherent in what the judge was writing the judge was making those conclusions and in addition the record supports it because once again the contracts were all negotiated and signed in italy the witnesses are italian the the project was in italy the legal issues if we look at the actual relief requested by the appellants rather than how they couch the cause of action they're looking for declaratory judgements that the may two thousand and twelve agreement was breached that the bylaws of the italian foundation were violated that the italian ministry of education decree called them your decree was violated and and and an injunction of the italian action and these are all issues that have to be decided under italian law and i understand the court is looking for an exposition in the lower court's decision but in fact it raises many of these issues it is certainly in the record one of the things that i keep emphasizing is that we have internalized into her decision but i understand that the exposition is not there your argument is that we can affirm on anybody's this so long as there's a record basis for yes i believe  if the record is there i believe this court can affirm even if the poor didn't go through and undertake a thorough analysis i believe it undertook it i believe it didn't expound on it in its opinion but i jurisdiction there is no there is a grounds for form one convenience there's absolutely no personal jurisdiction it's the most threadbare claim of personal jurisdiction the basis for personal jurisdiction in the lower court was the website and there were only two to actually buttes of that website pointed to one was a contact me form with a little box for a comment and two was the ability to look at and download the course list the planned course list there the the the case law in the second circuit is replete with cases that decide that that's not sufficient and that stretches to find that those attributes would render a website the basis of personal jurisdiction would i suggest to this court would subject most websites to personal jurisdiction in and the cases cited for personal jurisdiction based on this website and the interactivity of the website by the app balance all of them even though they may point to an ability to email point to many other things every single one of them sales meetings representatives in new york state many other things you saying if the only indicia of personal jurisdiction are that you can contact whatever the company  is and you can download an application that would cover almost every website it would but it's not even download an application you couldn't download an application on this website you can only download the list of intent of planned courses this never got off the ground by the way so this was all prospective if just by downloading information and sending an email a website confirms jurisdiction i'm hard pressed to think of a website that doesn't have those two attributes thank you thank you very brutally honest council says that this was a school that was advertising to students  and why is the website in english not to say that people don't speak english in italy but i'm sure predominantly they don't i just notice and of course unless there are things like english which can take a course to learn english well maybe it's english literature i don't know whether it's english language in the us it says english college english english there are some people speak english that could use an english course the fact is that they also talk about american costs in marketing and business and otherwise it is so new york centric this website there is no mistaking what they are trying to do it all comes back to the elephant in the room whatever they're doing here they're advertising new york the rabbit ties in connection to new york making it the american degree and quite frankly misleading everybody under the sun from torrent to the public no question about it counsel says that well you know we brought the action in italy because we sued in the us that's a whole different argument these individuals are not subject to the arbitration cla i can tell you that and it was a record but i say it the fact is they've already brought an action recently against toral for the same claims that they did against against the individuals if you look at three seventeen there are some  three fourteen and offers an introduction to college writing college writing sure college writing there quite a few courses that seem to be basic how to right but then you look at the previous pages they've intermediate macro economics theory introduction american business multinational business management their formal pages to deal in english and deal with courses that are more american based than they are in terms of italian and that's great that they provide that sort of service where they can help people speak english as well so they can understand the quotes curriculum better and understand the american system i hear you and in terms of you know whether this is an agreement a retort you know i'll go with hargraves i'll go what this court said over rolls royce it could be both it could be both what they are doing is it is a tort it is committed against toro it's it's dealing with or would throwing their good name at risk by