procedural history to create a few good rules for us to litigate below on one it's right to remove a case and how you should do it in this particular situation we have you know a complaint that plainly alleges the same causes of action fact that two years are added but it came time the same argument is there about this one hundred percent violation because it about restriction that was put in the original complaint was also put in the first of many complaints so why should the defendant have another bite at that apple and  says i think you know you can't just keep hijacking a case because you want to try again with a different removal or a different argument to support removal well they couldn't you argue to the district court that they couldn't rely on a new amended complaint in district court that's not exactly true because in our reply we opened up by saying that neither the original complaint nor the first amended complaint supports or you know allows the mountain controversy requirement to be met we did challenge the defendants you know attempts to use the first amended complaint and state and chided them for not setting authority for the proposition that they could use it but we went on to analyze the fact that the first minute complaint did not allow for them to complaint that was removed that's right and certainly if i if a plaintiff was to make adjustments or try to avoid jurisdiction those those amendments should not be considered bizarre cases that just the opposite of it's going to invest the court with jurisdiction they ought to be considered because the whole point of removal is to get it up and it's in federal court and it should be there and it should be there probably why when to consider the our nation can you have it both ways you were before the district court on the original complaint you took the position that the court should not look at the allegations in the first amendment complain because you're saying that look the amount in controversy following removals development but yet there's a first amendment compl filed there so just quote except your argument it went back so if we accept that the first man complaint has new allegations that would increase the amount in controversy why shouldn't the defendant kept coming back again first and then complain because they didn't get a chance the first time around you won on that argument just respectfully disagree that we won that argument i think the court did say that in its order but if you look at our reply brief if you are volume four four seventy four four seventy five four seventy six we address the first amended complaint we recognize it is there in its full glory and they're arguing that the same issues are presented by it and you know the court how did she as to do it i  just i firmly believe that the idea that you know we're going to send a letter against back to state court and they're going to come back again months later i mean that's just the laying you know the prosecution of the case is the we second removal was not a success the repetitive kind of thing with a properly i just i submit to the court to consider whether the case law truly addresses this particular procedural facts out and i think it's a unique situation because it is more efficient to do what i'm advocating now i firmly believe that i think we all would agree with that why should we go back to state court only to come back again and fight about the same things it's sitting right there what would it be different if you were if you hadn't filed the first amendment complaint in  federal court let's say you have the original complaint you prevail it got me man and then you file the first man complaint you say even under that circumstance defendant shouldn't get to try for a second time to to move to federal court no i think they can in that circumstance try to remove again because now i filed in state court and but all i would say to that in response to defendants were second removal that situation is you're stuck with the arguments you made the first time so if you're not going to claim one hundred percent violation to get your amount of controversy the first time around which we pled you don't get to do it the second time why do you get to keep making different arguments just because the math in the first around didn't work out for you they have a responsibility to do it properly the first time they do it that's would see so if they want to argue one hundred or so violation they should have done it the first time they did so they should be allowed to do it the second time ok i just think that makes sense to from an efficiency standpoint because you're dead allowing them to do it again and again and again let's assume they're now in federal court meet the what is it we were talking about seventy five thousand dollars jurisdictional them because we're dealing here with we're dealing with a single plane in a versity single plane of wage in our case i have no idea what the exact numbers but the amount of single plane of wage in our cases filed in los angeles angeles county superior courthouse to be some of them in the thousands if we're going to say that this single plaintiff wage in our case meets the seventy five thousand our jurisdictional amount we're going to have a flood of cases coming through the federal drop was only pled first amended complaint if you read paragraph sixteen the first men to complete the route restriction theory underline says it's all about meal all about meal all about meal for the first four sentences the very last sentence concludes therefore  cordingley plaintiff pleads that they were not you know he did not get his meal and your best breaks it's just a poorly drafted complaint because i'm out restriction was always about the meals it's about the meals in the original it's about the meals in the first amend it it's always about the meal so you shouldn't count our point on the mountain controversy the rest period should not count one hundred percent violation does not hold true with the route restriction it's only for the meal periods and we said in the briefs and we try to explain it but i agree that the complaint progress sixteen i get is what it is it is what it is but i mean i think you can i think the court is allowed to interpret it and say there i can see what they're really talking about here and it's not rest periods it's meal periods point one to the policy itself is just for the meals point two so it's not about respects point two is that rest breaks unlike meal breaks you're allowed to keep the employee on property so the extent you're saying you know you're you have to stay with your truck that's your moving property and that's not going to be a resprayed violation per se so that's the response we side of the regs for that but i you know to us the idea that you know you would know one hundred percent violation on that doesn't make sense and i think it they have a whole g p s system in his truck if they want to sit down and figure out how many rest breaks he might not have gotten under our theory they certainly could do it it would be one hundred percent so are the point is the idea that hey you know in removal he should have summary judgment type evidence to again that gets back to why did they get to argue it a different way the second time around when the same allegations were in the original complaint why should all of a sudden it go from assuming three breaks to ten that doesn't i don't think that's fair i don't think that's right i don't think they should get that by that second bite at the apple they have access to the information they have the allegations in front of them they should do it right the first time the show hijacked the case so we went through the math we think we get to fifty two thousand eight hundred seventy eight in one hundred eight there's you know one of the issues that come up in the certainly in the reply papers is the how far back can they go and this gets to you know something that's always completely baffled me in this case there was a case that was filed before her as mr della quaver our client filed the same class action it got rejected because he had an individual wrongful term case in the court deemed him to be  fit wrapper not an adequate class rep because of his interest in his wrongful term case we at that case what that case was pending was the key the case was already out there out dina took the position through its counsel that they were not related they had nothing to idea same causative action same theories but no wrongful term case so now we address the adequacy of the class rap and now they say it's related to akita and judge a real snap set up even though before he had rejected you know queta and now they're arguing even though they had said it's not related to you know we've got to go back and count to two thousand and six you know if anyone should be should just leave stop for making such an argument it should be out to dina because that you know how can how can not the related but presby related to a key to a just doesn't make sense so that cuts off two years also of their of their calculation and i think the couple not to beat a dead horse the two or three penalty was in the original  complaint in the first amended complaint why should they get that ignore the two was repentantly with the first time they remove the case but they argue for it in the first amended complaint i just don't see why you get to keep trying and shit till you get it right i don't think that's consistent with the policy behind removal of the other big ticket items two more the two twenty six point three penalties a civil penalty that's predicated on the citation they take the maximum on that there's no allegation of a citation being issued it shouldn't count at  all it's you know it's really i don't know of any cases awarded a two to six point three civil penalty to a plaintiff in california or in this circuit and the law says the attorneys fees they want to take twenty five percent of the common fund as if we're in a license if it were a class action but it's not because at this point they're removing it as if it were an individual case so it's the lodestar method and if you do the lodestar method the stories are that you should you know program to base the number of representatives so it's you know four hundred hours at the time removal so otherwise attorneys fees would hijack every single case in the federal court because we all know that these individual cases of the come with attorneys fees five to ten thousand are overtime case at the end of my trial if my attorney's fees could be you know twelve times that ten times you know and certainly get me over the jurisdictional minimum so that this case presents an opportunity for the court to define you dollars he then turned to the motion to dismiss under twelve b sixteen even though it was only a partial attack well you can't part of the allegations in the complaining and then he got her case kicked everything and i say understand it the other side recognizes that you will they were only dealing with the part of the claims i believe that's right i mean them i read read their papers again you know throw that i think we all agree that the the point of their motion to dismiss was to argue c b a preemption  and that only applied as of january one two thousand and eleven so that you can't dismiss the entire cause of action because there's remedies that exist prior to the c b a preemption exception and then in addition you know it also only deals the c b a preemption only deals with meals and only deals with overtime and there's allegations within the first and second causative actions regarding rest and also distrait time wages so the c b i preemption can address that finally there was a case that without the benefit of getting into whether or not the c b a actually meets the statutory requirements of the california labor code i think it's premature to motion to dismiss just to say you know this except that at face the issue which for which there is a circuit split that judge real ultimately sue a sponsor remanded our case was error i do want to start with it only because parties can't stipulate to jurisdiction and so we have raised the issue in our brief that the court made a fundamental error by conflating mandatory original diversity jurisdiction with discretionary supplemental jurisdiction and here is the case files we cite including st paul and geographic expeditions show that that was error and if the amount of controversy is satisfied there's no clear in that regard regardless of what happens on the motion to dismiss that the case should stay in federal court on the issue of the motion to dismiss address at the end i do want to confirm as stated in our brief we do agree that the motion should not have been granted to the extent it was we only sought it for meal breaks and overtime not then reverse as to the time that precedes that time frame as well as the rest break and street time claims would be a partial firman some partial reversal in that regard giving to the jurisdiction so going to the jurisdiction  o you know the the big issue of dispute here is whether or not the court should start digging into the merits of the case or not and it is bedrock law that for purposes of jurisdiction you don't determine the merits because the issue is not whether the defendant will or will not prevail at the end of the case the issue is what's at controversy according to the four corners of the complaint or any evidence what's different in the a first amendment complaint that  from three missed ranks per week to one hundred percent violation if the right restriction theory if you look at that wasn't in the original not of the details that was provided for in the first a medic complaint in fact if you look in the record there's a red line in the first american plate and if you look at paragraph sixteen of that red line it's in the record at page one hundred and eleven in fact just to put this back in context before i get there the complaint was pending an altered unify the motion to dismiss the grounds for our motion to dismiss was that the original complaint was too vague about the frequency of the meal breaks amended the complaint as is their right under the federal rules and mooted our motion to dismiss and has an extensive red line that the court will see starting on paragraph sixteen that goes all the way through paragraph twenty six so it's pages one hundred eleven to one hundred fifteen where the plaintiffs now goes in painstaking detail about why the route restriction theory renders every break on duty both meal and rest break it starts  issues there and how there's a failure to adjust routes into play reschedules and it goes on in a do so that's the new paragraph sixteen through twenty six in addition there is a footnote plaintiff allege he used to swipe in and out for breaks in this new allegation the plaintiff states that a review of the veda records quote easily demonstrates and quote all the meal and rest break violations that issue in the case and so on removal we submitted the veda records in electronic format for this particular plaintiff and looked at whether there was a missing punch for a meal whether there was a missing punch for a second meal on shifts that required possibly a second meal or whether there was a punch that was late in other words not timely with a five hour requirement if you look at that apples to apples comparison there was a ninety four point six violation based on this new allegation thereby rendering that calculation appropriate and we provide an alternative instead of a hundred percent violation rate ninety four point eight percent violation rate and that to get us over the seventy five thousand dollars threshold easily just through the first two causes of action and so this is really not just you know kind of a plaintiff's rhetoric a case of a second bite at the apple it's a new apple there is a new complaint that expands the scope of the case with a brand new theory of liability that was not fleshed out in this manner with new allegations involving zeta that allows us to have a new calculation that is amply supported by the record and is not constitute a clear error there is in fact no case that bars the defendant from changing its calculation when the scope of the complaint has changed that would violate we believe the rule of removal in the procedural rules of governor removal in twenty eight u s c fourteen forty six that allows us thirty days in fact to remove a complaint not the fourteen days that the plaintiff is arguing for when the was pending in federal court to go and search our records if we so choose were actually permitted unlimited time it's not even kept by thirty days because under the things called cuts hausen case in the ninth circuit that we cite cuts housing versus we did that time we did it was in thirty days and there is no error nevertheless not clear on the calculation this is a case where the plaintiffs alleges all the penalties all the harm that they intend to seek in the case always did it was walk through the math and apply the math to each of the harms and then now on appeal they want to run away on the merits on each claim arguing well the citation  or they have an argument that certain penalties are permitted under section two and three only under section two zero four and then we cite to the complaint with the alleged violations of section two a for the labor code and then their answer is we didn't mean to to win this case as most defendants do but it is what that controversy and there is no clear error in that regard toward reversal there are any other questions and of the issues i'm happy to address it's a lawyers dream to try and argue a circuit know use it all i will not but i will point out that and this is been a consistent theme for us throughout this case the original complaint plainly pleads about restriction theory so i don't understand how lawyers of that capability can say it doesn't it says real period as required by the california labor code and the applicable industrial welfare commission wage whether it was right there for them ok the zeta records were also right there for them in the original complaint footnote five we brought probably you have now we need footnotes in the complaint well of unfair that you're going to get a district judge this is not concise enough it's not i know no longer relate but the point being it was there and if you go should do it the right way they had the records they had the allegation they should've done it the right way and that's what's even stands for and we're getting away from that because it just lets them keep going back and back and back  labor code and unfortunately congress has said that if your cliff you have diverse different parties and new claims over seventy five thousand welcomes the federal court i just submit to you that they can't keep coming back and trying to get it over seventy five thousand i get the diversity aspect of it but the amount of controversy is not met and the last point i'll make and it's thank you for your patience to the panel but look their numbers may be plausible our numbers may be plausible but ever all doubts are supposed to be resolved against removal this is us this is the straight section thirteen thirty two did judge will make a factual determination i don't think so i mean there's no analysis whatsoever other than the say that it was over eighty he went from forty four the first time to over why take their number you know not take the number the first time a take it the second time without explanation there's an there's fictions in law but there's no fictions in numbers you can add them up you know we all can sit here and crank in crank the numbers if you crank the numbers and do it the right way it does not the seventy five thousand thank you council thank you thank you council we appreciate your arguments this morning i think that's our last case we're done for the day and