[00:00:08] Speaker 03:
Thank you, Your Honors. Good morning.

[00:00:10] Speaker 03:
May it please the court.

[00:00:11] Speaker 01:
Would you, I think there's two, pull the microphone a little bit closer to you.

[00:00:16] Speaker 01:
Good, thank you.

[00:00:19] Speaker 03:
John Griffiths for Plaintiff Appellant.

[00:00:23] Speaker 03:
I'd like to reserve a couple minutes for a rebuttal, if I may.

[00:00:28] Speaker 03:
The sole question here is whether Arizona's open and obvious doctrine Operates as a categorical bar at the pleading stage.

[00:00:41] Speaker 03:
And under Perez v. Circle K, the answer is no, whether the district court frames it as duty or breach.

[00:00:49] Speaker 01:
This case was disposed of on motion to dismiss, was it not?

[00:00:53] Speaker 03:
That's correct. A 12b6 motion.

[00:00:57] Speaker 01:
And so I guess the question is whether you stated a plausible claim, because it strikes me that It's not clear on the face of your complaint. The open and obvious doctrine might apply, but the real question is whether or not on the face of your complaint you failed to state a claim.

[00:01:21] Speaker 03:
Our contention, and I think the district court agreed with us that our complaint was well pled, and part of the details of our complaint were that The hazard wasn't a static condition, as my colleague is going to probably argue today, but that it was a dynamic situation, a chaotic situation.

[00:01:43] Speaker 01:
Yeah, but I guess what I'm trying to focus on is this.

[00:01:48] Speaker 01:
It may turn out on summary judgment or at trial that the facts establish that The absence of the chair was open and obvious and that therefore your client shouldn't recover. But I'm not sure that's an issue at the pleading stage.

[00:02:06] Speaker 03:
That's correct.

[00:02:07] Speaker 01:
But you haven't pleaded a set of facts stating it was open and obvious. You've pleaded a set of facts that say she got up and rather quickly reached back to steady herself on the chair. In the meantime, it had been pulled away. So I'm not sure that's the correct framing of the case is all that I'm saying. It may be that the doctrine will prevent you from recovery down the road because the facts you've alleged don't turn out to be the facts you can prove at trial. But the real question is whether you've alleged sufficient facts to give rise to a negligence claim.

[00:02:40] Speaker 03:
And I believe we did, Your Honor. I think the District Court and my colleague used the open and obvious doctrine, I think, in terms of an outdated framework that used it as a immunity bar without going into more detailed analysis about what did the pleading say. You know, there's a lot of unanswered questions that are really the purpose for discovery. And so our contention is that just dismissing it out of hand in a 12 posture is premature.

[00:03:15] Speaker 03:
Because, as you say, discovery may reveal that the chair was open and obvious, or the circumstances around its removal were such.

[00:03:26] Speaker 03:
But we aren't able to get to that point. We don't have the benefit of knowing those facts.

[00:03:33] Speaker 03:
And it's interesting that I think both the district court and my colleague use assumptions to come to their conclusions. And those assumptions are based on facts, really, that we don't know the answer to or not because we haven't reached that stage in the process.

[00:03:53] Speaker 01:
Can I?

[00:03:54] Speaker 00:
Judge, go ahead.

[00:03:57] Speaker 00:
Your client was present for all this. So although you say that discovery is needed, I mean, she was there. She should know what was actually said. She knows the history of how this has been done in the past and that it was done in the past. None of that is in the complaint, but it could be. I mean, I understand that the complaint wasn't dismissed for failure to state a plausible claim. with regard to detail, but there is a great deal of detail missing in terms of what you would need to determine whether there was, in fact, a breach of duty.

[00:04:37] Speaker 03:
And I think you raise a good point, Your Honor, because we asked for it in the alternative for us to be able to have leave to amend, and that was also denied.

[00:04:52] Speaker 01:
The district court seems to suggest it would be futile to amend.

[00:04:56] Speaker 03:
Apparently so, Your Honor.

[00:04:57] Speaker 01:
I mean, he didn't state the exact reason, but it seems to me that's the only possible one. Agreed.

[00:05:06] Speaker 00:
Also, one of the things I wondered in terms of what more detail might reveal is that the complaint says the defendant's representatives instructed attendees to remove their chairs. and store them.

[00:05:22] Speaker 00:
Again, there's no quote as to what was said, but the suggestion is that each person was supposed to remove their own chair.

[00:05:30] Speaker 00:
Now, again, if that was spelled out further, you would have a much stronger case.

[00:05:36] Speaker 03:
And yes, I think we do agree with that position. If we did have leave as an alternative relief to a man, we have been, I think, made aware of additional facts since the inception of this case. that we could amend the pleading to allege more specificity.

[00:05:55] Speaker 00:
But I gather the defendants have never taken the position here that they're somehow not responsible for what these attendees did when they were told to remove the chairs. They agree that this was done on behalf of the church and that the church was responsible for it.

[00:06:11] Speaker 03:
I believe so, Your Honor.

[00:06:13] Speaker 01:
Can I ask you a question about your negligent infliction of emotional distress claim?

[00:06:19] Speaker 01:
The district court dismissed because it didn't think you appropriately pleaded negligence.

[00:06:25] Speaker 01:
Assuming that you did for a moment, I'm having trouble reading the complaint even liberally as alleging that the emotional distress led to a physical injury or physical manifestation. There's lots of physical injuries alleged, but I just don't find the allegation that the physical manifestations or injuries resulted from the emotional distress as opposed to just hitting the ground.

[00:06:55] Speaker 01:
Assuming that the complaint doesn't sufficiently allege that, do you claim that you could sufficiently allege it if given the opportunity to amend? Yes, Your Honor.

[00:07:06] Speaker 03:
And again, we've been made aware of additional facts since the inception of the case that we could add that detail into the complaint.

[00:07:14] Speaker 01:
Because it just, I've read it, maybe I misread it, and I'd be interested in your reaction, but I just don't find the linkage that the NIAID law requires in Arizona between the emotional distress and the physical manifestation of it.

[00:07:31] Speaker 03:
And I think we would be, we would concede your question about that.

[00:07:38] Speaker 03:
There is definitely, I think, room to amend, and as I say, we have been made aware of additional facts.

[00:07:44] Speaker 01:
And I had another question about, you seem to be claiming injuries that resulted in Utah from treatment in Utah or Nevada, I forget which one, the subsequent church that she attended.

[00:08:00] Speaker 01:
Are those really approximately caused by what, if there was negligence, by the negligence of the folks in Chandler?

[00:08:08] Speaker 03:
That's our contention, Your Honor. The second accident, or the second injury, I should say, rather, occurred in close proximity to the first while our client was under a heavy amount of pain medicine and essentially trying to treat for the first.

[00:08:26] Speaker 00:
Was that in itself had an approximate cause problem? I mean, it was a month later.

[00:08:33] Speaker 00:
And it was causally connected, I suppose, to her earlier injury, but it wasn't a Actually, due to the injury as such, it was due to, as you contend, the medication she was under and so on. So it just seems that there are too many steps between the original injury and whatever caused her second fall a month later.

[00:09:01] Speaker 03:
And I think we would agree that there is some distance between both injuries.

[00:09:06] Speaker 01:
Yeah, and I guess I was focusing on the fact that people were mean to her.

[00:09:13] Speaker 01:
at the Second Church and belittled her and so forth. Are those really approximately caused by her injuries?

[00:09:23] Speaker 03:
Well, what I would really say about- The judge didn't dismiss on that basis, so I don't know that it makes much of a difference, but it just struck me as a little bit. What I would say in response to that question and perhaps some of these previous questions is really a lot of this could be further fleshed out in discovery.

[00:09:43] Speaker 03:
We have a limited set of facts that we've tried to allege with specificity, but we have a whole universe of available subpoena power, depositions, and so on and so forth. We haven't been afforded that opportunity.

[00:10:06] Speaker 03:
So be as it may.

[00:10:07] Speaker 00:
As to the second injury, I'm not sure what good discovery would do you. As to the people being mean to her in Utah I mean I suppose you might be able to demonstrate that there was some direct communication between the people in Utah and the people in where they said this person is terrible I'll be mean to her or something like that or she's suing us or she's complaining about us maybe you could find something like that it seems I don't know I don't know if that But as to the second, I'm more concerned about the second injury because I don't see anything that would tie it in sufficiently, no matter what the discoveries show.

[00:10:56] Speaker 03:
And again, I think, Your Honor, we would concede that there is some amount of distance between the two injuries. Our contention is that they are connected because were it not for the first injury, she wouldn't have suffered the second.

[00:11:09] Speaker 01:
But in any event, it's not in front of us whether you claim too much in damages. That's correct. What's in front of us is whether you stated a claim for the initial arising out of this incident at the Chandler Church.

[00:11:21] Speaker 03:
Correct. I would love to continue to make that opportunity to argue to the district court judge at a later date.

[00:11:29] Speaker 03:
But we need an opportunity to go back and to continue this case.

[00:11:33] Speaker 02:
Counsel, Judge Gould, I would like to interject a question to try to clarify something in my mind.

[00:11:44] Speaker 02:
To claim emotional distress damages, there has to be some physical injury first, right?

[00:11:58] Speaker 03:
Yes. Okay. Although I think cognitive and mental anguish, I think, can qualify under that standard.

[00:12:07] Speaker 02:
Okay. Also, my question is if she was injured from the fall itself, her initial fall, had some physical injury from that, wouldn't she be able to claim emotional distress damages?

[00:12:31] Speaker 02:
She doesn't have to.

[00:12:33] Speaker 02:
It's dead in another way.

[00:12:35] Speaker 03:
I'm following you, Your Honor. Yes, and I agree.

[00:12:40] Speaker 03:
The emotional distress could follow from the physical injury. No question.

[00:12:45] Speaker 02:
And she doesn't need necessarily a resulting physical injury from the emotional distress in order to get those damages if she was injured in the fall.

[00:13:02] Speaker 03:
I would agree, Your Honor.

[00:13:06] Speaker 01:
You wanted to save some time for a reply?

[00:13:07] Speaker 03:
Yes.

[00:13:08] Speaker 03:
Thank you.

[00:13:13] Speaker 01:
I hate to say let's hear from the church, so let's hear from the defendant.

[00:13:21] Speaker 04:
Thank you, Your Honor. Christopher Bates for the defendant, the Church of Jesus Christ of Latter-day Saints.

[00:13:26] Speaker 04:
Based on the pleaded facts in the complaint, the alleged hazard here was open and obvious as a matter of law.

[00:13:34] Speaker 01:
I want to push back on that, because I think that's the reason the District Court dismissed the complaint.

[00:13:41] Speaker 01:
The facts in the complaint seem to say, or certainly are subject to a plausible reading, that I stood up, I'm an elderly person, and it is reasonable for an elderly person when they're standing up to steady themselves on the chair, and it was yanked out from under me. And I think that doesn't, those facts as alleged don't make it clear that the danger was open and obvious.

[00:14:13] Speaker 01:
It may well be those facts are wrong. It may well be that it was seven minutes before and she saw them collecting lots of chairs before that and just didn't pay attention. But as alleged, which is all we can deal with, why do those facts establish as a matter of law that the danger was open and obvious?

[00:14:32] Speaker 04:
She pleaded that this was a customary routine directive that happened at the end of every meeting. This was a regular occurrence, this instruction.

[00:14:39] Speaker 01:
But was it a regular occurrence for them to take out the chair immediately after somebody stood up?

[00:14:45] Speaker 04:
Well, her claim is that the negligence was the instruction, not the removal of the chair. She claims that it was the instruction that created it.

[00:14:55] Speaker 00:
But what she's really claiming is that it was a lack of instruction. I mean, that is that the instructions were insufficiently detailed and didn't say, but watch out and don't do it until somebody has actually left or gotten up or whatever. But I have the same question I asked your opponent, which is what she actually says is that they instructed the attendees to remove their chairs and store them.

[00:15:25] Speaker 00:
Could that be understood as saying each person is supposed to remove their chair, not supposed to go around removing other people's chairs?

[00:15:36] Speaker 04:
That is how she phrases it, Your Honor. But she also doesn't plead that she was surprised by the fact that a different person had removed her chair. If, in fact, it were uncommon for somebody else to remove their neighbor's chair, she could have pleaded that. But she didn't plead that she was surprised that somebody else besides herself had removed her chair.

[00:16:00] Speaker 00:
Do you make a motion that this complaint was inadequate under Trump and Nick Wallace as insufficiently detailed to state a plausible claim?

[00:16:10] Speaker 04:
I'm sorry, what was the first part of your question, Your Honor?

[00:16:12] Speaker 00:
Asking whether you ever argued in the motion to dismiss that this was an inadequately pled complaint because insufficiently detailed. under Iqbal and Twombly.

[00:16:23] Speaker 04:
I'll ask my colleague to confirm, but I don't believe that we made the argument that it failed under Iqbal and Twombly. I think their argument was that based on the pleaded facts, it was open and obvious as a matter of law. And therefore, for that reason, there was not a viable negligence.

[00:16:37] Speaker 01:
But what you seem to be arguing today is that she failed to negate in her pleadings the fact that it might have been open and obvious. Yes. And I'm trying to figure out where the burden falls on that. That strikes me as you don't have to say in a pleading something occurred and the danger wasn't open and obvious. The question is whether the pleadings, if believed, establishes a matter of law that the danger was open and obvious. So how do I get that out of these pleadings?

[00:17:09] Speaker 04:
So I think that you're correct, Honor, that what we're arguing and how the district court approached this was the second half of what you said there. was that based on the pleadings themselves, established that it was open and obvious, and it was because it was a customary routine directive, it was a regular occurrence, and therefore she knew that when she stood up, that the chair would be removed. Did she know that?

[00:17:29] Speaker 00:
What she actually said was as she began to rise, she reached for her chair. So as pledged, she didn't actually even stand up.

[00:17:39] Speaker 04:
It's unclear from her pleading exactly how quickly the chair was removed. That's certainly correct, Your Honor. Based on the pleading, there was at least some time disjuncture between when she began rising and when she reached back. That is to say, she wasn't holding it, you know, from the second she began rising. There was some time disjuncture between when she began to stand up and when the chair was removed.

[00:18:00] Speaker 01:
But the complaint doesn't plead.

[00:18:03] Speaker 01:
I understood that they would take the chair out from under you immediately after you stood up. If it said that, I'd understand your open and obvious point. But it just said, I knew that there was a, custom of removing the chairs. But she seems to be arguing in this case that custom was carried out in a negligent manner because it was done so soon after she stood up that that's what caused her fall.

[00:18:28] Speaker 04:
Well, again, Your Honor, the claim is that the church was negligent not in the removal of the chair. It was negligent in issuing an instruction without appropriate supervision, training guidelines, etc. In other words, that the instruction was not detailed enough in providing instructions to the other attendees. And, you know, it's not a perfect analogy, but the cases that we see where the court applies the open and obvious doctrine, it's a case where somebody's at a gas station, there's a trench at the gas station, they can see the trench, they know that it's there, they proceed forward, they fall into it, and obviously they can see it.

[00:19:03] Speaker 04:
It's open and obvious, and so therefore they can be expected to take precautions to protect themselves. Here, similarly, because she heard the instruction, it was routine, it was a regular occurrence, she knew that when she stood her chair would be removed and therefore she could reasonably be expected to... I asked a different question.

[00:19:18] Speaker 01:
I'm sorry if I didn't ask it precisely enough. Did she allege that she knew that it was routine that the chair would be removed quite promptly after she stood up? Well, I mean, I understand... that the chairs would be removed, but doesn't she have some right to expect that she can get up and be steady before the chair is removed?

[00:19:39] Speaker 04:
I mean, she alleges that it was a routine directive.

[00:19:42] Speaker 01:
That's not what I asked. I asked, does she allege that I understood that the chairs would be removed instantaneously after I got up?

[00:19:54] Speaker 04:
No, she has not alleged that.

[00:19:57] Speaker 00:
Also, I'm going back to the fact that she didn't even say it happened after she got up. She said as she began to ride, she reached back. So her allegation is that she hadn't gotten up.

[00:20:10] Speaker 00:
She was in the process of getting up.

[00:20:14] Speaker 04:
It's not entirely clear, Your Honor, that's correct. In paragraph one, she says that when she began to rise to comply, in that later paragraph Your Honor just read from, she says, as she began to rise, there was at least some time disjuncture between when she began to rise and when she placed her hand on the chair. The chair wasn't ripped out from under her while her hand was on it. There was some some period in between when she began to rise and when she went to push her hand back.

[00:20:44] Speaker 01:
But the complaint is susceptible of a reading that said this occurred relatively shortly after I began to rise.

[00:20:53] Speaker 04:
I think that's correct, Your Honor.

[00:20:54] Speaker 01:
And if that's true, then how could the danger have been open and obvious?

[00:20:59] Speaker 04:
Because it was a customary routine.

[00:21:01] Speaker 01:
Was there a routine to yank chairs out from under people as they began to rise?

[00:21:05] Speaker 04:
Well, but again, Your Honor, her claim is that the negligence was not in the removal of the chair. Her claim is that the negligence was in the issuance of instruction.

[00:21:14] Speaker 01:
Let's assume for a moment that the local church, I'm sure this didn't come from anywhere else, said, you've got to get those chairs out from under those people as soon as they begin to rise because we are on a tough time schedule. That would be bad instruction, wouldn't it?

[00:21:29] Speaker 04:
I would agree that that could certainly create foreseeable risks, yes, but... But as open and obvious, even in that instance, she would have been on notice that as she began to rise, her chair could be removed from under her. And therefore, if she had reason to expect that she might have difficulty rising, that she could take precautions to protect herself. That's the nub of the open and obvious doctrine.

[00:21:52] Speaker 02:
I'm sorry. Let me interject a question.

[00:21:59] Speaker 02:
I understood your example that if someone sees a ditch that's visible, that can be open and obvious. They should not stumble into it.

[00:22:14] Speaker 02:
But how can a person yanking a chair away or taking a chair away while a person's either rising or starting to sit down, how could that be open and obvious? It wasn't visible to her eyes that someone would do something in the future that would cause that.

[00:22:43] Speaker 02:
So I have a problem with your obvious contention because of the timing.

[00:22:57] Speaker 02:
I don't see how she could have seen that that would happen before it happened.

[00:23:06] Speaker 02:
So unless she's clairvoyant, which no one's contending.

[00:23:15] Speaker 04:
I appreciate that, Your Honor. The key point is that she knew that the chair would be removed when she stood because of the instruction. So it wasn't visual. It was that she heard the instruction and therefore knew because of the instruction that her chair would be removed. And therefore, if she had reason to expect that she might have difficulty standing, she was on notice that her chair would be removed. And therefore, she could have waited a little longer to stand. She could have put her hand back at the exact second that she began standing.

[00:23:44] Speaker 01:
I interrupted Judge Gould. Go ahead.

[00:23:47] Speaker 02:
And why would that not be a matter for a summary judgment motion where it's decided on facts?

[00:23:57] Speaker 02:
And you could put on an affidavit saying, that it was obvious when she started to rise and opposing it, there could be a affidavit or declaration from the plaintiff saying why it's not obvious that a court would have to decide if there was a genuine issue of material fact raised.

[00:24:32] Speaker 02:
But I have trouble right now, and that's why I wanted to give you a chance to respond. But seeing this as open and obvious.

[00:24:47] Speaker 04:
Thank you, Your Honor. Again, it's not visual in the same way that the trench example is, but she heard the instructions, so therefore she understood that when she stood, her chair would be removed. And the key to the open and obvious doctrine is that when... She said it wasn't when she stood.

[00:25:04] Speaker 00:
She said it was as she began to rise.

[00:25:07] Speaker 04:
Well, yes, Your Honor. And so if she had reason to expect that she might have difficulty standing, this is the key of the open and obvious doctrine.

[00:25:15] Speaker 00:
As she began to rise, she reached for her chair. So why does a directive that you say would be reasonably understood as saying, When somebody gets up, take their chair, which I don't even know if it's true because it actually says that they're supposed to remove their chairs. But if that was true, she says it happened that she reached for her chair as she began to rise. That's what she says.

[00:25:47] Speaker 00:
That your position is inconsistent with what the alleged facts.

[00:25:52] Speaker 04:
Well, Your Honor, when you look at the complaint...

[00:25:56] Speaker 04:
there is some time disjuncture between when she began to rise and when she put her hand back. It may have been that it was a brief amount of time.

[00:26:02] Speaker 00:
That's not what she says. She says, as she began to rise, she reached for her chair.

[00:26:07] Speaker 00:
Yes, so... As she began to rise, she reached for her chair.

[00:26:12] Speaker 04:
Yes, so she had lifted herself at least some distance off the chair. It doesn't say, you know, she put her hand back and then rose. It says that she began to rise first. and then put her hand back. So it may be a brief amount of time.

[00:26:27] Speaker 00:
It wasn't standing up in the way that somebody could think that she was actually out of the chair. In any event, I have a separate question.

[00:26:36] Speaker 00:
What is your position on the motion to amend? What possible justification is there for not allowing an amendment here? Given our case law, which is extremely permissive about amendments.

[00:26:49] Speaker 04:
While this court's case law also says, Your Honor, that a district court does not abuse its discretion in denying leave to amend where the plaintiff doesn't state what additional facts they would have offered, we moved to dismiss with prejudice in her opposition. She didn't proffer facts that she would have added or attached an amended complaint. Even now on appeal, she has suggested potential subjects that she could proffer facts on about how quickly it was removed, the density of the congregation. But she hasn't said what those facts actually are.

[00:27:22] Speaker 04:
And so under this court's case law, it's not in the use of discretion to deny leave to amend when the plaintiff hasn't actually proffered to the court what those actual facts are.

[00:27:38] Speaker 00:
And finally, I take it you don't take any issue with the notion that the church is responsible for what the congregants did.

[00:27:50] Speaker 00:
Well, for the, I guess you would say for the directive, if it was insufficiently, it was a negligent directive with regard to what the congregants were to do. Is that how you would phrase it?

[00:28:05] Speaker 04:
For purposes of our motion below here on appeal, we've accepted the facts as pled. We're not content.

[00:28:12] Speaker 00:
You've accepted the fact that the church could be responsible.

[00:28:17] Speaker 00:
if a congregant pursuant to this directive pulled a chair out negligently.

[00:28:25] Speaker 04:
So, again, the negligence claim is the instruction. If she had pleaded negligence based on the removal and that the church was responsible for a parishioner removing, we might have contested that. Her claim is that a church leader gave the instruction.

[00:28:43] Speaker 01:
Couldn't the complaint be amended? I mean, it seems to me in this case that even in the absence of an instruction, it might be negligent for an agent of the church, the guy stacking up the chairs, to pull away the chairs so quickly. So isn't the complaint at least susceptible of a reading that with amendment would state a claim?

[00:29:06] Speaker 04:
I think, again, we've not briefed this because this is not how they presented the claim. I...

[00:29:15] Speaker 04:
If she were to claim that a fellow parishioner removing a chair in doing so was acting as an agent of the church, I think that we probably would contest that.

[00:29:24] Speaker 01:
Even if they had been instructed by the church to remove the chairs?

[00:29:30] Speaker 01:
Nobody doubts that the church instructed these people, whoever they were, to fellow parishioners. to remove the chairs. So they were plainly acting on behalf of the church in doing that, weren't they?

[00:29:42] Speaker 04:
So the question, Your Honor, would be, you know, a church or a school, you know, whatever organization we want to come up with, if they ask the attendees to remove the chairs, do the attendees then become the agents of the organization in removing the chairs? I don't know what the case law says on that off the top of my head. I would think there probably could be reasons that we would have to argue the agency doesn't extend that far, but that's obviously not what's been pleaded here.

[00:30:04] Speaker 01:
Fair enough. I think we've taken you over.

[00:30:06] Speaker 04:
Okay.

[00:30:07] Speaker 01:
Thank you, Your Honors. We appreciate the argument, and Mr. Griffiths, you have a little bit of time for rebuttal.

[00:30:13] Speaker 03:
I really don't have much to add other than what's been argued, Your Honors. If there are any other follow-up questions, I'd be happy to answer them. I did want to mention with regard to the church's contention that this was a routine operation and so on and so forth. I think that can also cut in favor of our position that there is foreseeability, and the church should have known that

[00:30:38] Speaker 00:
that these circumstances created an opportunity or hazards could have been foreseeable because of the... About the motion to amend and the fact that you didn't offer and haven't offered any specific allocations.

[00:30:57] Speaker 03:
Well, I don't know if I can speak specifically to our request for relief in that circumstance. I know that

[00:31:08] Speaker 01:
Were we, or if we are granted that opportunity to amend, that we can... As I read you pleading, it says, we think we've pleaded, we've stated a claim, but Judge, if you don't think so, let us amend. You didn't say, because we would add, now knowing what their problem is with your complaint, because we would add the following facts, did you?

[00:31:29] Speaker 03:
No. No. No, but, you know, I guess hindsight is 20-20 in going through this process.

[00:31:36] Speaker 02:
Sir, counsel, Judge Kuhl with a question for you on this amendment issue.

[00:31:46] Speaker 02:
Has the complaint ever been previously amended once or was the operative complaint the complaint initially filed?

[00:32:02] Speaker 03:
I'm sorry, could you repeat that again? Was the complaint.

[00:32:30] Speaker 02:
that was dismissed here with the dismissal on appeal, was that the original complaint that was filed?

[00:32:42] Speaker 02:
Or had it ever been amended previously?

[00:32:51] Speaker 03:
And I don't know the answer to that offhand, Your Honor. There is a possibility that it could have been amended offhand. I don't think that it had been. I think this was the complaint as it was filed.

[00:33:03] Speaker 00:
Well, the complaint that's in the record is called complaint. It's not called First Amendment amended complaint or anything else.

[00:33:09] Speaker 03:
I don't have any recollection of making it.

[00:33:11] Speaker 01:
And I can't find any order in the record where the judge granted leave to amend or any indication that you just amended within the time period allowed by law.

[00:33:20] Speaker 03:
As far as I know, I don't think we never did amend or had that opportunity.

[00:33:25] Speaker 02:
Okay, but the reason I asked my question was in some other cases, I think I've seen authorities saying there's a more liberal standard to permit amendment if it's the first amendment of a

[00:33:49] Speaker 03:
complaint the court's going to dismiss yeah i think i i agree with you i think um again to my recollection and i think as the record shows this this is our original complaint um we would appreciate the opportunity to be able to amend to add specificity and i think that should be um should be granted to us your honors yeah well i'm i'm

[00:34:19] Speaker 02:
Speaking just for myself, I'm personally inclined to think a complaint should be liberally granted.

[00:34:29] Speaker 02:
Amendments should be liberally granted after a first complaint, after the initial complaint is dismissed. But your friend on the other side of the case should comment in a rebuttal on that.

[00:34:54] Speaker 03:
And again, I am in agreement.

[00:34:58] Speaker 03:
And I would welcome a rebuttal from my colleague in that circumstance in front of the district court.

[00:35:06] Speaker 01:
Other questions from my colleagues?

[00:35:09] Speaker 01:
If not, this case will be submitted with thanks to both sides for their briefing and argument.

[00:35:14] Speaker 03:
Thank you, Your Honor.