the court's permission three minutes for a bottle the district court issued an order in october two thousand and four that essentially held that the simple fact that there were indians on both sides of the dispute rendered  without jurisdiction we were before the district court for approximately fourteen months on various pretrial proceedings and the issue came up something as a passing issue and the district court issued an order to show ca understanding of the case law as it relates to section thirteen thirty two way is if you can analyze the case on a party by party basis and you can find a basis for establishing the jurisdictional rights of aliens in this country but even without that if you're mitt mr john from the defendants we have a product liability case against general motors that's independent of mr johns negligence action we have also a separate claim against but under their own argument if there are independently viable claims against people with whom there would be jurisdiction absolutely other alien defendant that defeats complete reversal of the there's some case left so i don't understand that argument to prevail i have a different question for you marius judge how board indicated that you had not sought in order to preserve that would what would what would happen if we were to do that is that person an indispensable party under rule nineteen absolutely not our position is mr john is not indispensable to anything other than our claims against him and he made that argument in the district co position is that we did and also i didn't quite ask you that did you i don't recall specifically whether we made that specific argument but our position below before the district court was on the issue of subject matter the both sides that question should be either permitted by the district court to be specifically addressed by us or assisted with been mentioned by the district court that because of the existence of an indispensable party i e john subject matter jurisdiction was lacking well our position is that the district court itself then i consider that issue as a factor relevant to subject matter jurisdiction analysis and if it is it would be happy to dismiss the driver from the case and keep the case in the district of arizona against a n c car rental company and general motors because in part because it really goes to judicial economy we had a case advanced fourteen months could be a charge a curious charge that allows mr john grows to be considered even though he's not directly involved in the federal diversity action so that can be cured without the feeding subject statute of limitations problem with arizona state court action why are you bothering with this appeal because the appeal arose as of the time the decision was rendered which was october two thousand and four without in every case that's argued before this court in every other court in this country all of the events arrive argue ad hoc and if we allow the mere passage of time to render events mood when they're not well i'm not talking about a legal luten is no subject matter jurisdiction we have a foreign plaintiff a foreign defendant and u s defendants under face sound the ninth circuit controlling president there's no diversity jurisdiction the treated has not independently confirmed jurisdiction on the federal court as the foreign defendant from the federal action and proceed in federal court against only the u s defendants then you have jurisdiction under thirteen thirty two a to a foreign entity or foreign individual suing us entities to stay the state court action in flagstaff because at the time this action was pending in federal court and the other that's pending in state court in new jersey that case was dismissed in new jersey on december sixteenth a little over two weeks ago so now we just have the two cases in arizona in federal court state court but nothing has happened in the state court action so there's a possible fight about service across against the individual against the driver yes that's the bottom line now the service process has not been accomplished is that you're going to be  represented by counsel so there's a question about whether that acceptance of services valid or whether there are some other issues with that but i see that issue has not been breached or raised on the state court but it will be so there will be an issue under arizona law which of course would be applied in the federal court of the case proceeded there under diversity we could identify the driver as a nonparty at fault and try and make it essentially is an empty chair there's two problems from our perspective we may not be able to get his testimony and we would like to be able to present his testimony and his recollection of the accident to the jury and if he is not a party we may not be able to get his deposition we have to proceed under the hague convention which is a cumbersome process and we really don't have a remedy if he refuses to appear at the deposition so we prefer to have him as a party and if i may step into the shoes applying for a moment if the case proceeds in federal court with mr johnson on party at fault and there's a jury verdict that found l mr g on the driver who was going very fast ninety percent at fault the plaintiff would not be able to recover any money from mr jiang because he would be a nonparty at fault so from the plant just perspective looking at the rule nineteen factors they would not have an adequate remedy they would not be able to collect their full measure of damages if mr john was not a party so i frankly was surprised to counsel's statement please the court to make coffee on behalf of the a n c run a corporation you are in answer to your question unfortunately i'm not in a position to be able to answer it at this time and the reason why there was some procedural issues that resulted in this case where lewis iraq was originally signed as counsel of record for both a and c car rental corporation as well as mr jong as the case was progressing they identified that there was a potential conflict of interest they stepped out of the case  i stepped in and that specific issue i have not reviewed it recently and so i'm not in position to be able to answer that question for and i apologize your honor