[00:00:00] Speaker 01:
Volcker versus Noble Energy, and we'll hear from Mr. Barton.

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

[00:00:09] Speaker 00:
I'm George Barton.

[00:00:11] Speaker 00:
I'm appearing on behalf of the appellants today.

[00:00:15] Speaker 00:
The first issue I want to address is what is the effect on this appeal of the Colorado Energy and Carbon Management Commission's November 7, 2023 order, which determined that the commission, which was formerly known as the Colorado Oil and Gas Conservation Commission, what was the effect of

[00:00:41] Speaker 00:
of their order declining jurisdiction over the plaintiff's breach of contract claims against Noble and Kermage.

[00:00:50] Speaker 04:
So you're arguing that because you've exhausted your administrative remedies after the fact, after filing this case and after it being dismissed, that somehow it resurrects it?

[00:01:03] Speaker 00:
Well, yes.

[00:01:04] Speaker 00:
I mean, Your Honor, we were in the process

[00:01:09] Speaker 00:
of attempting to exhaust our administrative remedies with the Commission before both or for this case is referred to in the briefs as both or for before that case was ever filed.

[00:01:21] Speaker 00:
And so in the course of doing that, that was a long-winded process because the commission decided at the request of the defendants to stay the commission proceeding pending the outcome of the Colorado Supreme Court appeal in the, it was called Airport Land versus Ontario Resources.

[00:01:49] Speaker 00:
And so after that,

[00:01:50] Speaker 00:
decision was issued by the Colorado Supreme Court, the stay of the commission proceeding was lifted.

[00:01:59] Speaker 00:
And then the hearing officer for the commission made really two recommendations, one being that the commission did not have jurisdiction over the royalty owner, the plaintiff's breach of contract claims against the two defendants.

[00:02:18] Speaker 00:
And the second recommendation from the hearing officer was that the plaintiff's claims were not barred by the doctrine of race judicata so that the commission could make a determination of its jurisdiction.

[00:02:34] Speaker 00:
And that order was issued before the commission took the matter up and issued its final decision on November 7, 2023.

[00:02:44] Speaker 00:
And so at that point, when that order was issued on November 7, 2023, the plaintiffs had then fully complied with the order of Judge Martinez in Bolter 1, the plaintiffs were required to exhaust their administrative remedies with the commission.

[00:03:02] Speaker 04:
So if you prevail here, and we say that it shouldn't have been dismissed with prejudice,

[00:03:08] Speaker 04:
What that says to me is that you now have jurisdiction and you can file in the district court.

[00:03:14] Speaker 04:
But it certainly doesn't say to me, because we assessed jurisdiction at the time the case is filed, that you somehow retroactively can resurrect a case that was dismissed for lack of jurisdiction.

[00:03:28] Speaker 04:
I mean, if we're having a civil procedure test right now.

[00:03:32] Speaker 00:
Well, I think, as we've explained in our briefs,

[00:03:36] Speaker 00:
You know that the Bolter 1 was filed and then we filed the subsequent cases, Bolter 2, Bolter 3, and Bolter 4, based upon the Colorado statute that we discussed at some length in the briefs, which is Colorado Revised Statute 13-80-111.

[00:03:56] Speaker 02:
which says, and I'm just going to read it, it says... Before you do that, I want to follow up where Judge Kueh was, because I think what she's saying is we only have one issue in front, well, there's two issues, and one is about the dismissal with prejudice, which may offer you some hope here, but...

[00:04:14] Speaker 02:
The main issue we've got is whether the jurisdictional determination in Bolter One, whether we can reconsider that because of the Colorado Supreme Court's decision in Entero.

[00:04:27] Speaker 02:
And we can't.

[00:04:29] Speaker 02:
Because Antero was decided after you filed this case, Bolter 4, I think it was.

[00:04:36] Speaker 02:
I think we're on Bolter 6 now.

[00:04:38] Speaker 02:
I'm not sure.

[00:04:40] Speaker 02:
And if we resolve that issue against you, there's nothing else to consider other than whether the dismissals should have been with prejudice.

[00:04:48] Speaker 00:
Well, I think, Your Honor, what I'm communicating is that effectively, those issues, whether the

[00:04:56] Speaker 00:
decision in airport land negated the plaintiff's obligation to exhaust their administrative remedies with the commission.

[00:05:05] Speaker 00:
All of that has been rendered moot by the fact that the commission has now determined that it does not have jurisdiction over the plaintiff's breach of contract claims against the defendants.

[00:05:18] Speaker 04:
Which means that if you're not barred because it was dismissed with prejudice, you could now file in the district court because now you've exhausted your administrative remedies by first going to the commission and having the commission decline jurisdiction, which opens the door for you in district court to file in bolter six, bolter seven?

[00:05:43] Speaker 00:
Bolter five, it would be.

[00:05:45] Speaker 04:
OK.

[00:05:46] Speaker 04:
But it doesn't do anything here.

[00:05:50] Speaker 04:
Because it doesn't.

[00:05:54] Speaker 04:
You have not yet exhausted your administrative remedies when you filed this action.

[00:06:00] Speaker 04:
And so if the court was correct that the airport land decision didn't affect that, then it doesn't help you that you've now exhausted as to this

[00:06:19] Speaker 04:
But if you prevail on the second issue here, on with or without prejudice, you now can go to the district court.

[00:06:29] Speaker 00:
That's one way of approaching it procedurally, I agree, Your Honor.

[00:06:33] Speaker 04:
It's the only way I can think of approaching it procedurally.

[00:06:37] Speaker 00:
Well, as to the issue of dismissal with prejudice,

[00:06:42] Speaker 00:
in our brief.

[00:06:44] Speaker 00:
The only issues that the district court in this case considered was the issue of whether or not the court had subject matter jurisdiction because the plaintiffs had not completed their exhaustion of administrative remedies with the commission.

[00:07:01] Speaker 01:
Okay, on that point, and I think you may be segueing to the second issue.

[00:07:06] Speaker 01:
I am.

[00:07:06] Speaker 01:
But before you do that, I want to

[00:07:12] Speaker 01:
intertwine that answer with Judge McHugh's earlier question.

[00:07:15] Speaker 01:
Don't you, because the court in Volter 1 did treat exhaustion as an attribute of subject matter jurisdiction, Judge McHugh had earlier asked, and I wasn't sure that I got the answer, don't you determine whether or not a court has subject matter jurisdiction at the time that the complaint is filed?

[00:07:36] Speaker 01:
In other words, if you don't have, say, diversity,

[00:07:40] Speaker 01:
on the day that the complaint is filed, and then you subsequently get diversity during the pendency of the suit, that doesn't somehow retroactively create jurisdiction, right?

[00:07:53] Speaker 01:
Her question was, don't you determine jurisdiction with regard to exhaustion, with regard to diversity, on the date that the complaint is filed?

[00:08:03] Speaker 00:
Well, that is typically yes.

[00:08:06] Speaker 00:
And what we would say is because of the fact that there was a dismissal in Bolter One for lack of subject matter jurisdiction, for failure to exhaust administrative remedies.

[00:08:18] Speaker 00:
then our approach was obviously that the plaintiffs have to exhaust their administrative remedies in order for the district court to have subject matter jurisdiction.

[00:08:31] Speaker 00:
The reason that you've had four cases filed is because of the tolling doctrine that's set forth in the Colorado statute that I talked about.

[00:08:40] Speaker 00:
Sure.

[00:08:40] Speaker 01:
And that might be perfectly valid to toll the statute of limitations in order to avoid expiration of limitations period.

[00:08:47] Speaker 01:
But we're still stuck with Restreta Cotta on Bolter 1.

[00:08:52] Speaker 01:
And if Bolter 1 said that there was no subject matter jurisdiction, rightly or wrongly, because of the rationale that you have to go to the commission, and if the commission says it has no jurisdiction, then the commission says it has no jurisdiction.

[00:09:05] Speaker 01:
The mayor may have somehow questioned that, the wisdom of that.

[00:09:09] Speaker 01:
But that is what the court said.

[00:09:11] Speaker 01:
It is res judicata.

[00:09:14] Speaker 01:
But in order to forestall the limitations period understandably, which you do, you keep filing these new suits.

[00:09:21] Speaker 01:
But the problem is that you still have the problem that there was no jurisdiction on day one when Volta 1 was filed.

[00:09:32] Speaker 01:
And so you can't retroactively create

[00:09:35] Speaker 01:
you know, solve this exhaustion problem by exhausting after the fact.

[00:09:40] Speaker 00:
Well, the exhaustion has now been completed, and I think what's being... That's not... I understand that, and so... Not relevant.

[00:09:48] Speaker 02:
We told you in the last case, this court said in what I'll call Bolter 5, that Bolter 1, the first case where the jurisdiction was decided, was the final decision on that, and that there could be no future litigation on the jurisdiction issue.

[00:10:04] Speaker 02:
Nevertheless, you brought this case and argued that there was an intervening change in the law, which might change the jurisdiction determination.

[00:10:16] Speaker 02:
And what I'm saying to you is, that's the issue before this appeals court now.

[00:10:21] Speaker 02:
is was there an intervening change in the law?

[00:10:24] Speaker 02:
And regardless of whether that's important to you now or you think it may be moot, that's the issue before this court.

[00:10:31] Speaker 02:
And the issue is not whether you've exhausted and can move forward with what you were trying to do back in Bolter I. Well, I think in light of this court's

[00:10:44] Speaker 00:
prior decision, we recognize that.

[00:10:46] Speaker 00:
But I think the reasons we were refiling these cases in the first place was because we had to, under the statute, in order to toll the statute of limitations.

[00:10:57] Speaker 00:
That's the reason we filed Boulder 2, Boulder 3, and Boulder 4.

[00:11:01] Speaker 00:
And we said that to each of the district courts.

[00:11:06] Speaker 00:
Right.

[00:11:06] Speaker 04:
So I'm assuming this explanation that you're giving me now

[00:11:10] Speaker 04:
going to that it shouldn't be a dismissal with prejudice is that what we're talking about now yes it's it and remember that dismissals and bolters I'm trying to focus your argument because it really is helpful if it's focused so we're moving now to the with or without prejudice that's wrong and you are arguing I guess

[00:11:32] Speaker 04:
that it can't be treated as a sanction because you had a good faith reason for refiling.

[00:11:40] Speaker 04:
Am I accurately understanding your argument?

[00:11:43] Speaker 00:
That's correct.

[00:11:44] Speaker 00:
Based upon the Colorado statute that we cited and the Colorado Court of Appeals decisions, that's the reason we filed the additional three cases.

[00:11:54] Speaker 00:
And during that time period, we were trying to exhaust our administrative remedies and finally,

[00:12:01] Speaker 00:
We're successful in doing that.

[00:12:04] Speaker 00:
And our position is that because the district court in this case, his dismissal of this case was based upon a lack of subject of matter jurisdiction,

[00:12:19] Speaker 00:
The district court did not give any indication that he was dismissing it with prejudice as any kind of sanction against the plaintiffs.

[00:12:26] Speaker 00:
He didn't make any statement about that.

[00:12:28] Speaker 00:
The district court in this case did not address, you know, our stated reasons as to whether or not it was appropriate for the plaintiffs to rely upon Colorado revised statute 1380-111.

[00:12:42] Speaker 00:
He didn't say anything about it.

[00:12:44] Speaker 00:
He didn't address the Colorado court of appeals decision.

[00:12:47] Speaker 00:
But unlike the dismissals in Bolter I, Bolter II, and Bolter III, all of which were dismissed without prejudice, for whatever reason, the district court in this case dismissed the case with prejudice.

[00:13:02] Speaker 00:
And we believe that was reversible error, as we said, based upon primarily the Preraton decision, which specifically says, a long-standing line of cases from this surrogate holds that where the district court

[00:13:16] Speaker 00:
dismisses an action for lack of jurisdiction, the dismissal must be without prejudice.

[00:13:22] Speaker 00:
And that's what happened here.

[00:13:24] Speaker 00:
And so that was raised in our opening brief.

[00:13:27] Speaker 00:
And I understand your honors.

[00:13:33] Speaker 00:
focus on this with respect to the fact that, you know, it may be that we're going to have to go back and file another new case now that we've exhausted our administrative remedies, but we do believe the district court erred in dismissing this case without prejudice, without explanation, I might add.

[00:13:48] Speaker 00:
And the other thing I might add is, when this matter was in front of the commission, the commission itself, and this matters, I think, for this issue, the commission itself

[00:13:59] Speaker 00:
ruled that the only with prejudice part of the district court's decision in this case was the, you know, the with prejudice as to the plaintiff's duty to exhaust their administrative remedies with the commission.

[00:14:15] Speaker 00:
That's what the district court was focused on in its order of dismissal in this case.

[00:14:22] Speaker 00:
The commission ruled that that was not race judicata as to the plaintiff's claims on the merits, and the district court in this case did not in any way address the merits of the plaintiff's recent contract claims.

[00:14:55] Speaker 03:
Good morning, and may it please the court.

[00:14:57] Speaker 03:
I'm Theresa Warden-Benz, appearing on behalf of Appellees, Noble Energy, and Care McGee Oil and Gas.

[00:15:05] Speaker 03:
This court can affirm on issue preclusion for the same reason it affirmed in Volter 2 and 3 just this summer.

[00:15:12] Speaker 03:
Plaintiffs, once again, as this court has identified, filed this lawsuit without first exhausting their administrative remedies.

[00:15:18] Speaker 03:
And they also have failed to identify an intervening change in the law that would

[00:15:24] Speaker 03:
allow them to avoid the preclusive effect of Bolter 1.

[00:15:27] Speaker 01:
Isn't the change in law obvious?

[00:15:32] Speaker 01:
It's a court saying you have to go to the commission in order to exhaust this claim.

[00:15:38] Speaker 01:
They go to the commission and the commission says we have no jurisdiction over this claim.

[00:15:45] Speaker 01:
Why isn't that a clear change in the law?

[00:15:49] Speaker 03:
It's not a change in the governing law as to the step that Bolter 1 focused on, because Bolter 1 focused on the first step, going to the commission to determine jurisdiction.

[00:15:59] Speaker 03:
Airport land in Tarot didn't have anything to do with that step.

[00:16:03] Speaker 03:
It had to do with the second step of, does the commission have jurisdiction?

[00:16:07] Speaker 03:
Is there a bona fide dispute of contract?

[00:16:10] Speaker 03:
The fact that plaintiffs have to go to the commission first, that's part of Colorado statutory.

[00:16:14] Speaker 03:
law, the statute says the commission shall determine.

[00:16:18] Speaker 01:
You actually have to exhaust a claim before an administrative tribunal that expressly says it has no jurisdiction over that.

[00:16:30] Speaker 01:
That just seems such an anomaly.

[00:16:33] Speaker 03:
That's what the Colorado statute requires.

[00:16:35] Speaker 03:
So the Colorado legislature made a policy decision that the first stop should be the commission, for the commission to decide, is there a bona fide dispute of contract interpretation?

[00:16:45] Speaker 03:
If there is, the plaintiffs have exhausted and they can move on and file the case in district court.

[00:16:50] Speaker 03:
And Airport Land didn't change that analysis whatsoever.

[00:16:55] Speaker 03:
it was always supposed to be the first stop, is go to the commission.

[00:16:58] Speaker 03:
And plaintiffs could have done that.

[00:16:59] Speaker 03:
And that's one of the core issues with respect to the dismissal with prejudice.

[00:17:03] Speaker 04:
Well, let's turn to the dismissal with prejudice.

[00:17:06] Speaker 04:
Our case law is pretty clear.

[00:17:07] Speaker 04:
If you dismiss for lack of jurisdiction, it's got to be without prejudice.

[00:17:12] Speaker 04:
And if you're arguing now,

[00:17:15] Speaker 04:
that it was a sanction, but your motion didn't ask for a sanction.

[00:17:19] Speaker 04:
The only sanction asked for was that they can't file without leave.

[00:17:24] Speaker 04:
But there was certainly not a sanction that they can never file.

[00:17:29] Speaker 04:
And we have case law that says that you can't dismiss with prejudice without going through pretty

[00:17:38] Speaker 04:
detailed analysis under a set of factors called the Aaron House factors.

[00:17:44] Speaker 04:
The district court didn't even fly by those factors, never indicated this was a sanction.

[00:17:52] Speaker 04:
I mean, isn't it pretty clear we need to remand for this to be entered without prejudice?

[00:18:00] Speaker 03:
Alternatively, the court could remand for additional findings as to why the court dismissed with prejudice.

[00:18:06] Speaker 01:
Why would we do that?

[00:18:08] Speaker 03:
Because it wasn't a mistake.

[00:18:09] Speaker 03:
I don't think the court mistakenly dismissed with prejudice.

[00:18:12] Speaker 01:
But I thought, are you disagreeing with Judge McHugh's premise that the court dismissed for the same reason that it dismissed in Volter 1, that there was no subject matter jurisdiction because it had not been exhausted when the complaint was filed?

[00:18:29] Speaker 03:
That's correct.

[00:18:30] Speaker 01:
So why do we need clarification?

[00:18:32] Speaker 01:
It was either jurisdictional or it wasn't.

[00:18:34] Speaker 01:
And if it was jurisdictional,

[00:18:36] Speaker 01:
Then, I mean, we can ask them for explanation, but can you think of one?

[00:18:42] Speaker 01:
I mean, I can't think of any.

[00:18:43] Speaker 03:
The way that the district court ended the opinion, it said that a party who believes a district court wrongfully dismissed its case has a number of options.

[00:18:52] Speaker 03:
Move for reconsideration.

[00:18:53] Speaker 03:
Appeal.

[00:18:54] Speaker 03:
That's something they decided not to do in Volter 1.

[00:18:57] Speaker 03:
What a party can't do is what the plaintiffs did here is keep filing the same case

[00:19:01] Speaker 03:
three more times without fixing the jurisdictional defect.

[00:19:05] Speaker 01:
There is something sanctionable there.

[00:19:17] Speaker 01:
Frankly, let's just entertain that on its merits.

[00:19:20] Speaker 01:
Why not?

[00:19:21] Speaker 01:
They have an obvious explanation that they are trying to continue to toll the limitations period.

[00:19:30] Speaker 01:
They're upfront about it.

[00:19:32] Speaker 01:
They tell the judges that.

[00:19:33] Speaker 01:
They tell us that.

[00:19:34] Speaker 01:
They tell you that.

[00:19:35] Speaker 01:
Why is that sanctionable?

[00:19:39] Speaker 03:
Because their interpretation of the revival statute 13-80-111 isn't supported by the law.

[00:19:47] Speaker 04:
Well, I might agree with you.

[00:19:49] Speaker 04:
But making a bad legal argument typically isn't sanctionable by dismissing the case with prejudice.

[00:20:01] Speaker 03:
When a party continues to refile the same identical action, and I know most of the case law in the circuit and others dealing with the refiling of the same identical action and getting it dismissed over and over again is by a pro se litigant, because that may happen.

[00:20:15] Speaker 03:
You wouldn't expect an experienced counsel to keep filing the same case without fixing the jurisdictional defect.

[00:20:22] Speaker 03:
There's no mystery that they needed to go to the commission.

[00:20:25] Speaker 03:
They eventually did go to the commission.

[00:20:26] Speaker 04:
The district court never even mentions the word sanction.

[00:20:29] Speaker 04:
It never mentions that the factors that you must consider before you dismiss with prejudice in this circuit.

[00:20:39] Speaker 04:
To me, it seems like a pretty far leap for us to say, well, the court must have meant this to be a sanction.

[00:20:50] Speaker 02:
Maybe if you had a pending motion, but you had a motion which wasn't asking for, of course, dismissal with prejudice, you withdrew that motion.

[00:21:00] Speaker 02:
There's nothing pending.

[00:21:02] Speaker 02:
District court doesn't go through the Aaron House factors.

[00:21:04] Speaker 02:
The district court doesn't use the word sanctions.

[00:21:06] Speaker 02:
The district court doesn't indicate it's in any way imposing this as a sanction.

[00:21:11] Speaker 02:
There just doesn't seem to be any reason for us to remand for the district court to somehow bolster

[00:21:20] Speaker 02:
non-findings about sanctions.

[00:21:24] Speaker 03:
The court does have the inherent authority to sanction.

[00:21:27] Speaker 03:
So even without a motion pending or a motion brought at all, the court could sanction.

[00:21:32] Speaker 02:
Well, I understand that.

[00:21:33] Speaker 02:
But there's nothing to indicate that's what it was attempting to do here, is my point.

[00:21:37] Speaker 02:
There's just no facts to indicate that.

[00:21:39] Speaker 03:
When you look at the record, the Aaron House factors are met here.

[00:21:42] Speaker 04:
I mean, are you asking us to, in the first instance, or through the record and apply,

[00:21:49] Speaker 04:
that try to figure out the Aaron House factors.

[00:21:53] Speaker 03:
We argued them in our brief.

[00:21:55] Speaker 04:
I know you argued them in your brief, but I don't think the record's clear on the end and out.

[00:21:59] Speaker 04:
And frankly, we weren't sitting there.

[00:22:02] Speaker 04:
I mean, the person who is on the front line for determining when sanctions, and particularly this sanction, which is the atomic bomb of sanctions, should be imposed is the trial judge.

[00:22:19] Speaker 03:
And the trial judge at least gave them a warning and gave some explanation.

[00:22:23] Speaker 03:
And it's this refiling of what sort of amounts to a frivolous lawsuit.

[00:22:27] Speaker 02:
If, for instance, a party were to- They have a justification for it.

[00:22:31] Speaker 02:
And you heard that justification.

[00:22:33] Speaker 02:
And you've heard it in the past.

[00:22:34] Speaker 02:
And they believe it's necessary to preserve their right to file this and not run past the statute.

[00:22:42] Speaker 02:
They have a justification.

[00:22:44] Speaker 02:
If the district court was deciding this on a basis of sanctions, it would have had to talk about that.

[00:22:50] Speaker 02:
It would have had to reason through that and decide that basically it was willful misconduct for this kind of an egregious sanction.

[00:22:58] Speaker 02:
And there was just nothing like that here.

[00:23:02] Speaker 02:
It's not that they don't have some rationale for it.

[00:23:05] Speaker 02:
Clearly, the district court was irritated.

[00:23:08] Speaker 02:
But that's not enough for us to say, well, here, have a second try at it.

[00:23:13] Speaker 02:
And it has to be clear and convincing evidence also.

[00:23:17] Speaker 04:
I mean, it's a pretty steep hill to climb.

[00:23:23] Speaker 04:
And for us to do it, I'm not inclined to take that on.

[00:23:31] Speaker 03:
But we agree it's a steep hill to climb and that it would have been better if the district court had given some reasons as to why there was a dismissal with prejudice, other than the conclusion that what the plaintiffs were doing was improper.

[00:23:45] Speaker 03:
But looking at those Aaron House factors, again, there is a high degree of prejudice.

[00:23:49] Speaker 03:
Four district courts can dismiss this case.

[00:23:52] Speaker 03:
This is the third appeal, the second oral argument.

[00:23:55] Speaker 04:
And if the district court had done that analysis and had told us,

[00:24:01] Speaker 04:
that one, it was imposing a sanction, and two, it had carefully analyzed these factors, and it found by clear and convincing evidence that this was willful misconduct, we'd be there.

[00:24:16] Speaker 04:
But none of that is in this record.

[00:24:19] Speaker 03:
The facts, though, are in this record.

[00:24:21] Speaker 03:
If, for instance, a plaintiff were to file in federal court

[00:24:25] Speaker 03:
using diversity jurisdiction.

[00:24:27] Speaker 03:
And the court determined it was dismissal because there wasn't true diversity jurisdiction.

[00:24:32] Speaker 03:
And then they said, well, I'm not going to cure it.

[00:24:34] Speaker 03:
I'm not going to go back to state court, for instance, where there would be jurisdiction or appeal it and say, I think I have diversity jurisdiction.

[00:24:43] Speaker 03:
I'm just going to refile the same complaint again under the revival statute and say, that's the reason I'm refiling is because there's a revival statute.

[00:24:51] Speaker 03:
And then it gets dismissed again.

[00:24:52] Speaker 04:
And I'm going to keep refiling.

[00:24:54] Speaker 04:
to try and toll under my interpretation of this statute.

[00:24:59] Speaker 04:
And at the same time, I'm trying to fix my diversity issue.

[00:25:05] Speaker 03:
They didn't file before the commission until the district court had dismissed Bolter 1, Bolter 2, and it was on the eve of the dismissal of Bolter 3.

[00:25:14] Speaker 03:
So that's not showing reasonable diligence that the revival statute requires.

[00:25:18] Speaker 03:
Moreover, it's far outside the 90 days that the revival statute gives a grace period to fix the mistake.

[00:25:23] Speaker 03:
They had a curable defect.

[00:25:25] Speaker 03:
They were told what it was by Bolter I, and they didn't attempt to fix it then.

[00:25:30] Speaker 03:
And they also, the way to extend the statute of limitations and to preserve the arguments they'd made throughout all of these cases would be to appeal Bolter I and make those arguments to this court.

[00:25:42] Speaker 03:
And then if they're wrong, they could have used the revival statute to pursue Bolter II and in the meantime could have exhausted their remedies at the same time.

[00:25:49] Speaker 04:
They chose none of those options.

[00:25:52] Speaker 04:
I don't have disagreement with it.

[00:25:55] Speaker 04:
I probably wouldn't interpret that statute the same way they did, but we don't have a decision from the district court even telling us this was done as a sanction, let alone that the court found by clearing convincing evidence that it was willful misconduct under the Ehrenhaus factor.

[00:26:18] Speaker 04:
I really feel like we can't give you the relief you want.

[00:26:24] Speaker 03:
At the very least, though, this case does have to be dismissed.

[00:26:27] Speaker 03:
And this court could also consider the alternative grounds we offered, which is the Rule 12b6 dismissal.

[00:26:33] Speaker 03:
It's a legal question.

[00:26:34] Speaker 03:
And it may have also animated the district court's dismissal with prejudice.

[00:26:37] Speaker 01:
But we could only do that if, yeah, I guess you're saying in the alternative.

[00:26:43] Speaker 01:
Because if we decide that the court had no jurisdiction,

[00:26:47] Speaker 01:
then we can't entertain a 12b6 motion.

[00:26:49] Speaker 03:
Yes, that's only if the court had jurisdiction.

[00:26:52] Speaker 03:
That would be an alternative basis to affirm with prejudice.

[00:26:56] Speaker 04:
I think you've convinced us that there was no subject matter jurisdiction.

[00:27:07] Speaker 03:
And unless the court has further questions,

[00:27:11] Speaker 03:
We'd ask for you to affirm with prejudice, but at the very least, it's clear that the case needs to be dismissed for the same reasons as Volter 2 and 3 for failure to overcome issue preclusion and failure to exhaust the remedies before filing the complaint.

[00:27:27] Speaker 03:
Thank you.

[00:27:28] Speaker 01:
Thank you.

[00:27:30] Speaker 01:
Ali, I think the repellent's out of time, aren't they?

[00:27:33] Speaker 01:
OK.

[00:27:34] Speaker 01:
Thank you.

[00:27:36] Speaker 01:
Well presented.

[00:27:36] Speaker 01:
This matter will be submitted.