you know the rules so do you want us to remind you about any yes a little time thank you your honor i'd like to reserve five minutes five minutes ok keep people on the clock i'll try to remind you ok may please the court i'm worse and i represent nation star mortgage as i'm sure you're well aware the principal issue in these appeals is whether the reasoning of durham versus lockheed extends beyond  federal office or removal cases to calf or removal cases under fourteen fifty three so that a case becomes removable for purposes of fourteen forty six and the thirty day window  of time for removal reopens or or opens for the first time under fourteen fifty three when the case becomes removable and or that section even though earlier it might have been removable under a different sections i choose for counsel do you agree that if we don't extend the reasoning of durham that you lose yes ok we should that honest answer  but i shouldn't lose because as we pointed out in our brief actually in both of our briefs the three reasons why durham was decided the way it was removals under fourteen fifty three those three reasons are first of all broad construction secondly single for defendant removal and third prevention of gains and chip all of those three are covered in our briefs and i don't want to reiterate what i said in writing because i think i can write better than i can talk but i do want to turn to what is in the apple lisa briefs both in this case and eminence on those three arguments and the first thing i'd like to point out is what's not there what's not there is any argument on the second or the third of those three reasons that is to say single defendant removal or prevention of gamesmanship neither brief by eminent or jordan says the slightest thing about either of those two reasons for broad for application of durham first to fourteen forty two and in our case to fourteen fifty three even if you're right the counsel to what action by jordan can you point that suggest there was opinion not one that necessarily relates to the facts of this no no no i don't want an invite or a opinion but the possibility of gamesmanship indeed the probability of it if one were to rule the other way is a reason for construing fourteen forty six in the way that durham did and that reason applies equally indeed more particularly to  specifically in an acting cafe said that its intent was to prevent exactly that sort of gamesmanship to prevent plaintiffs from gaming the system and keeping the nation nationally important class actions in state court rather than in the federal form that congress felt they should be in for federalism concerns to turn to what  e's actually do say in their briefs jordan first of all says don't pay any attention to dart cherokees statement about no presumption against removal in ca because that's just victim well can i ask you about a very special dictum when it's from the supreme court indeed it is your honor a point i was about to make but thank you and furthermore it was necessary holding it wasn't victim because the supreme court explained that the district court had ruled the way it did in dart cherokee largely because it applied a presumption against removal and the supreme court said no that's wrong doesn't isn't that the key thing that has changed the game for you is that statement in dart because if we didn't have dart i guess i would have been pretty pretty hostile to your argument because we still would have had in place this presumption against removal even in cafe cases right well i think you can interpret the prior decisions of the ninth circuit in a way that's consistent with cherokee but i agree with you that dark cherokee definitely strongly supports our position but so let's just put let's put dart aside for a second and let's just look at the state of the case law in our circuit before that seems to me it was not a match for the fourteen forty two removal scenario that we dressed in durham because there there was this expressed policy in favor of removal right yes our case law prior to dart said in catholic cases just the opposite there's a presumption against  so it seems to me if you didn't have dark eyed i'm not sure you could prevail here and if that's true maybe you'll tell me why that's wrong but if that's true it seems a little odd that really just one sentence and a citation with apparent th of going dark could have the effect of overruling an entire line of our circuits cases well your your honor first of all i would disagree about the prior cases the prior ninth circuit cases come into varieties one where it's just pure dictum one sentence one line or strict construction those are dictum they're not precedent they don't bind this panel and they wouldn't bind any other they were the basis of those decisions were they not on the facts of those particular case you know not not the cases that i'm talking about which brought you talking about rauf and the attorney general of nevada versus i can't remember the other guy's name and so on now there were a series of earlier cases aberg for example where the principle of stricter construction was applied a very particular sense not across the board strict construction but rather saying that congress in cafe was very knowledgeable about removal procedure and chose to alter those aspects of removal procedure which it felt it wanted to change and it also expressly what about nevada vs bank of america what about luther versus countrywide home loans those those are thank you you reminded me of the defendant in the nevada case those are cases in which i believe the decision turned on other matters for example in nevada vs bank of america the question was what's a mass action under caf the strict construction principle really had nothing to do with that in at least as i read the case well i mean if you're trying to argue that we just were spouting off for no good reason in these cases about there being a presumption against removal in cafe cases i'm just not buying that i'll be honest with you what all we did is that we have a very well established presumption against removal under the general removal statute then one cafe got knocked and we said the same presumption applies in this context and we said it over and over again so i don't think you're going to make a lot of headway at least with me on that argument is there some other reason why you think that the derm principle would still hold even under the presumption court cited as support for its no presumption against removal statement in their cherokee and i think both the supreme court's statement and congress's statement about what was intended nonetheless said there's a presumption against removal undercount true and the supreme court has said that you got it wrong you know one sentence and then the it offers a cite citation with a parent that was what i'm saying to me that's it's a pretty radical change in our circuits case that you're attributing to dart and let me well i can't let me just join my colleague and i'm frankly surprised that you put so much reliance on dart because that dealt with whether the construing in dart is not the section we're talking about here is it well yes it is your honor i think it's fourteen forty six which is you know the not what they're talking about is that i thought it was fourteen fifty three well fourteen fifty three it is the substantive removal provision but what dart cherokee was talking about was procedure on removal namely whether the removal petition has to allege specific facts or be supported by affidavits that is not governed by fourteen fifty three ok so you bottom line is to answer both judge  question your your whole case relies on your construction of dart is a fair statement well i still maintain that the ninth circuit's prior decisions are consistent but if the court's not going with me on that i agree with you the dart is we say dart cherokee change the ball game in the eleventh circuit by the way in the deadly case yeah i know he's with one circuits already know that but go ahead  i just want to before you move off that point i'm just saying put dart out of the equation and let me hear your explanation for why notwithstanding the presumption against removal that our circuit up and up until now has applied why does why could how could we apply the derm principle in that context do you have an argument on that or are you just saying no changes the ballgame and that's why we went well i certainly say the latter but i also believe that this circuit was not committed to presumption against applied in average go namely burden of proof or in western progressive i believe it was governing whether a defendant includes a cross defendant or a counter defendant those principles apply in cafe cases because congress chose not to alter them here we're dealing with a situation the that congress could not have dealt with in history of a lot and if gard hadn't come along your argument would still be the same that congress won to change the ballgame because of what they've thought was an unfortunate way in which  class actions were being handled on the state side and they wanted protection in the federal side yes and and spoke quite plainly about both well about three things first the national importance of class actions to the economy and that was why the federal government has a very keen interest in removing these cases to federal court second that it wanted its statute to be broadly construed third that it wanted to prevent gamesmanship to that have been played by plaintiff's lawyers to keep these cases in state court all three of those are involved in the issue before the court in this case now is his ninth circuit taking a look at that by any case that you're aware of of what that legislative history means now so this is really the first time we've looked whether dard exists or not first time we've looked at the whether the legislative history changes the gameplay that's my feeling and that's what i was trying to explain to the judge watt for but apparently not as eloquently as you did and i don't really i'm just stumbling around on monday morning answer that question is no and it's no for three very specific reasons first of all the history and policy behind federal officer jurisdiction is markedly different than the history and policy behind that behind calf number two oh it's not it's not different if we take the supreme court at its word and dark it's very similar in fact there is this strong desire on congress's part to see a certain class of cases wind up in federal court and so as the  court in dark instructed us the ordinary presumption against removal that it normally applies in the general under the general removal statute doesn't apply under cafe seems very similar to the fourteen forty two removal  jurisdiction but when you look at federal officer jurisdiction and this court correctly cited it in durham citing directly to the supreme court the statement from the supreme court arizona versus many and he says the right of removal of federal officer jurisdiction is absolute for conduct performed under the color of office and the policy following removal should not be frustrated by a narrow grudgingly interpretation of fourteen forty two now this came out of the history of federal officer removal and the importance of  federal officers being able to be in a federal ban i understand your your argument i read it carefully in a brief that the thought that struck me was that we may be spending a little too much time on durham and maybe we ought to go back and find out what the congress had in mind doing and if i think the burden that you have here from my point of view is that it was clear the congress wanted to open up  a larger venue for class action case isn't a federal court it's clear that the vice is what they were looking for and if we didn't have durham and if we didn't have  supreme court giving his due to whatever it is and you went back just to the to the what congress is trying to do by its legislative history wouldn't you have a tough burden here where by applying legislative history you're right that there is a burden but this is pointed and candid the burden rests with the defense on that issue but as to the issue about congress and the senate reports that have been cited you know the a good example of it is that congress made some very specific provisions and therefore they made they go rid of the one year bar they got rid of the requirement for complete diversity they got rid of important relevant to durham they got rid of the consent to broaden fourteen forty six or importantly remove the thirty day removal window and so in answering your honor the issue is that congress under katha very specifically did engage in broadly principles for very specific reasons but it didn't go further than well i i know i understand what you're saying but there's no go until there's a jurisdictional amount stated there was no way that they could use calf go until there was a statement made as to the amount of money so africa really wasn't involved until it was fully before but if we accept your reasoning and maybe we will if we accept your reasoning what we're saying is that some act that occurred before that having to do a diversity automatically gets caffe good what they're trying to accomplish and i'm not sure that's what the congress is trying to do maybe you can help me with that well and i think this that argument congress was intending to a large extent to prevent gamesmanship half the planet by that was keeping court cases out of federal jurisdiction and state courts that otherwise might be removable and and in doing  that they they were directly trying to take away the ability for plaintiffs to style their cases or high claims and this court's reasoning and durham hit on that issue in the factual circumstances of that case when it looked at absent the germ reasoning the ability of the of the defendants actually the plaintiffs to prevent federal jurisdiction under kafa and the subsequent changes that were made in two thousand and five and under the facts of durham the plaintiffs simply don't have the ability to mask anything for example subject matter jurisdiction is implicated under the requirements of well pleaded complaints when there's a federal question posed there is no gamesmanship available to do that well i'm not accusing your client of game and ship obviously but the person could hold back the actual amount that's at stake and keep count from occurring and then if the diversity is there they automatically lose out on their ability to use it which was the amount alleged and to that point i guess my question is it seems like your opponent is having a dart to represent a radical new change and removal jurisprudence is it that or is it quite narrow in what the supreme court decided it's it is not what they're proposing it is quite narrow and it actually bears on your honor's question as well that opinion couldn't be more clear in its statement it was specifically narrowed to analysis of the sufficiency of the pleadings on a defendant's removal notice but where harmonizes with congress intent on your question your honor is that dark cherokee actually cuts against defendants and doesn't require an expressed statement of the amount of controversy dart chair he says there just needs to be a possible allegation that that is congruity and harmonious with congress's intent against gamesmanship and also doesn't defeat when there's some question about the jurisdictional amount because dark cherokee instructs us that all the defendant has to do is make a possible allegation now if that challenge it's still the defendant's burden to support that possible allegation but dart cherokee sp says that in order to remove properly in timely which they did not do you do not need an express statement just a possible allegation i follow up on this point judge wallace has referred to legislative history there are those who have sincere doubts about what that might be and what it represents does the senate committee report purport on its face to speak for the senate as a senate committee report what what bearing does that have on our construction of the cases your honor at minimal minimal varying but not just for the the notion of general  petition of senate reports which are bipartisan is subject to quite a bit of debate in our part of the political process but but more importantly that senate report you can look at it the other way it doesn't say and it and there's frankly no reading of it that would indicate that was intended by congress was to prevent the purported gamesmanship on behalf of the plaintiff's bar and that the same time allow for gamesmanship on behalf of the defense by providing for and this is ultimately what the defense is germ alice's asking this court to do by providing multiple opportunities under the same removal statute and that is a fundamental difference between durham and here because in durham even if you accept some of the fences arguments it's important to note that under that case once in separate statute was implicated for removal because it started out of the federal eminence and then facts were disclosed that implicated federal officer jurisdiction once that second entirely separate statutory basis was revealed the thirty day window opened and that defendant timely removed under what or are you saying that it's it seems to me that's just a separate in the cafe context well it's not under the facts of this case because the fundamental difference is in the context of this case there was always subject matter of your general question better question right and now we're talking about it's not even just regular diversity it's capital city it's katha diverse totally different statute why isn't the same as what you were just talking they didn't have it under any statute and the court recognized that and so when that unilateral ability to remove presented itself through later disclosure of facts the court said that they had the opportunity in this case the defendant always ha unilateral ability to remove and just did and i understand that doesn't implicate the broader policy discussion but on the facts of this case jerm doesn't apply because durham didn't have that opportunity and defend it's always have they elected either intentionally or unintentionally not to exercise that opportunity but that's a distinct difference under duress well i guess what i find significant is not so much whether one defendant can remove you know how to really but rather whether the class of cases that we're talking about is one for which congress has expressed a special preference that they be in federal court if the defendant so desires and i i mean i read that senate report statement that the supreme court has now sort of given greater prominence to and it says the cafe's provision should be read broadly with a strong preference that interstate class action should be heard in federal court and it seems to me exactly the description we gave federal officer removal cases in durham under fourteen forty two and i don't i guess i'm having a hard time seeing how you resist the logic of derm transferring over to kaffir once we have dart and this emphasis on there being a strong preference on congress's part that these interstate class actions come into federal court again i've got to come back to the fact the facts of the of this case the german our system doesn't apply based on the facts of this case but to attempt to answer your question i mean that the overall logic of applying federal officer jurisdiction to cough again that historically and procedurally they're just they're just different to begin with and there is nothing in those senate reports that would indicate that what congress was truly intending to do was create multiple opportunities for removal so why not if let's say that in under the regular under the ordinary diverse removal stache right right we have a presumption against removal right you normally your your client's desire to remain in state court prevails all things being equal katha class actions are different though right and so so a defendant let's say who's presented with a case that doesn't qualify for cafe treatment might just decide to do this remains to court the stakes are high enough but once you amend to allege to to make allegations that now bring it within cafe's domain why can a defendant say oh well wait a minute now if we're into the realm of an interstate class action a case of national importance like congress had in mind with kaffir well now i do want to be in federal court why wouldn't congress have said yes you should be given that opportunity now that the case has been transformed into a know if i'm saying that they're correct me if i'm wrong i understand that your clients original complaint did not qualify for removal under calf a right that's incorrect or ok tell me why that's because it always pl believe it did it posed a feather you alleged it was a class action correct it was styled on alleged more than five million dollars no it it did not let it state a specific amount of controversy but all dark cherokee says is that it doesn't have to and the defendants could have removed on the plaza the allegation that it did and we wouldn't have been able to resist it on this show ok well i'm going to need to hear from the other side i was on the impression that it was undisputed that your complaint as originally drafted would not have the complaint as originally filed did did state on behalf of other situated similar situated have after c p claims and did not state a specific amount in controversy but it was there after amendable the first time in a second time to specifically build out and and designate the members of the putative class and a description of them and so even if the original complaint back in two thousand and twelve didn't by two thousand and thirteen well be a year before they made this removal it definitely defined that class they had information and it provided discovery that over ten thousand five hundred members met that class and they had information that the claim being made on behalf of lawyers and more included amongst other things fees about nine hundred eighty dollars you know but that doesn't mean that everybody in the class had damages of that same amount i mean we haven't i can't remember the case but we have a case that's very clear that the defendant you've got to give enough information in the complaint from which the defendant can basically just do the math you can't expect the defendant to sort of speculate oh well because your client has damages of nine hundred dollars that necessarily means that everybody else hasn't least that much in damages clubhouse and b b m w i think is the case you're referring to but specifically fourteen forty six provides for other papers not just the complaint itself your honor and and part of that reference to fourteen forty six it's back to the original question i think you're asking which is congress always provided a protection for if in the beginning it's not removable on it face then when it does become removable there's a there is a second opportunity to remove it or and actually it's my first opportunity that protection was built in specifically by congress under forty forty six retained when they made forty and fifty three and on the is the first time in your view that you that the defendant had enough information from which the kaffir thirty day window to remove was triggered honestly from the initial complaint but most certainly by the first amend complaint because what was different about that because the description of the class was fully defined and fully built that meaning that under the holdings of clocks house and the b m w the defendant had sufficient notice of who the class members would be and through their other papers and our other papers they knew the amounts that were being claimed and that and the vast multitude of people that were affected by that and so clubhouse and doesn't require them to go to the ends of the earth to figure that out but it doesn't allow them to put their head in the sand and neither does the concepts behind fourteen forty six or frankly durham allow for that either that it's the type of gamesmanship that specifically not allowed and if you if you were to allow that not only would you be violating fourteen can you hold on for something somebody have a phone on these turn any phones or anything like that can you start i'm just kind of sorry that noise if you were to allow that type of behavior you would be directly violating the safeguard that was built into fourteen forty six that didn't say just the first time ever but rather when it became known on other papers and he would be taking durham radically farther than his logical conclusion because what you'd be allowing the defendant to do is again stick their head in sand with like a request for admission and importantly d'art cherokee speaks to this issue and says there is no reason why you need to wait until you issue requests for mission you just have to have a plausible allegation and so hopefully answer your question congress removing jurisdiction if a person pleads that they're a resident of another state it gives no diversity jurisdiction we we always wink over it because counsel don't know enough to how to word it but until they say there are a citizen we have no jurisdiction so if they just say a resident even though they could claim citizenship they still could stay in state court and my guess is that if some on the when the other side tried remove it it wouldn't work because the magic word was and said doesn't that if we apply the same approach to this type of removal it would require somebody to say x amount of dollars not we have this number of people and if you add it up and you're on a piece of paper you can do it but you have to say magic words that's what we do in diversity jurisdiction why wouldn't we do it here because i think that that's not consistent with congress intent and frankly it's not consistent with the rules of federal rules of civil procedure why why do you say it's not what congress intended i think it strikes me that it maybe both sides like to stay in the state court and so why why wouldn't somebody have to make it specific if they want to come see us well i think honestly i think part of it  ever frankly ever should require an express exact amount and dark cherokee echoes that statement it takes it further so it doesn't require a specific amount of cora's in addition to in addition to that is it has  cases where there's an amount they say the plea plead it's an id it's in and amount in addition to a certain amount but if you don't plea that you have a problem with getting into court so why should we require a specific pleading here as to the amount of controversy rather than a guessing amount because i think that it's under removal i think it's again well established that is the defendant's burden to prove that remov so i don't think that burden runs to the jurisdiction is a little like being pregnant you're either have it or you don't have it and and is very technical and it strikes me that that it's an issue that your argument i think you know there's a hopefully we'll have further enlightened argument from council on his response but let me address the last issue that was brought up because i think it's a distraction the original complaint here the amended complaint did not allege an amount in controversy clearly whatever else they allege they did not allege an amount in controversy and below and on the original complaint and the amended compendium of when we didn't find no paper was served on us stating an amount and controversy until we served requests for admission and they responded with an admission that they sought i think it was fifteen million or twenty five million that was two days before we filed our removal petition needless to say timely of the thirty day period opened with the responses being served there were three arguments they made below and by the way none of them repeated in their merits brief on this appeal as to why prior to that time there was sufficient allegation or paper  before us from which we could have drawn the amount in controversy you heard your opponent just say that the first the many complaints certainly sketched out the contours of the class absolutely sketched out the contours of the class the defendant's only obligation is to multiply numbers stated in the complaint or other papers it doesn't have to look at its own records to determine per class member damages add them up by the number of class members all we had prior to the response to the requests for admission was so many members of the class not a per class member damage figure and in the  recent this court's recent cases of a bar and oh gosh i'm blanking on the other name that just came out a little while ago the court was very clear that the defendant cannot presume that each member of a class suffers the same amount of damages listen that were dark does have some impact though in terms of damages well it not on when the case becomes removable but respect to the allegations respecting the amount no i would disagree your honor ok what the supreme court said was you don't have to allege evidence you simply have to state clearly  in compliance with the twamley ball standard that more than five million is at stake but it didn't say when you know that more than five million is at stake that's and says the defendant can wait until it gets a paper from which it can at least calculate as a mathematical proposition class member times class member damage equals total or of course as we had here with a request for admissions and actual total to address just quickly a couple of other points that don't let up if you will we let you go over time so do that quickly please  ok the senate report your honor mention that and i wanted just to point out that whatever force that might otherwise have i think the supreme court has given it a much more force it has as masking jurisdiction goes this complaint and this case illustrate exactly how that could be done here we had a complaint that apart from the caption which said and similarly people similarly situated said zero about class it alleged one sentence of a federal claim which said defendants have violated the  a and and that was it now a defendant in that situation quite reasonably would not remove because if it removed the f t c the a claim would likely be dismissed and the rest of the calling rest of the claims all of which were state law claims would be remanded to the state court under thirteen sixty seven so if one were to rule against us in this case what you'd be doing is compelling defendants in these types of cases to remove cases that otherwise wouldn't be removed jamma federal courts with cases that are not properly here serve federal jurisdiction for those cases which congress said should be year we think the much more reasonable approach is to wait until the case shows that it should be here and then remov e thank you council for shit your arguments thank you both for the case just argued is submitted