please the court my name is paul prager i'm here as counsel for terminix international and ernest walker case is pretty well briefed and i sense the court to reach the briefs so i'll try not to restate much of what's there what i think this is a novel issue at least i couldn't find this issue being decided in the just prince of this court but it didn't say fairly straightforward application of the principles that were set forth in the in the opinion of the other judge fletcher and countrywide home versus mortgage guarantee and the issue there being the discretion of a judge to dismiss under forty one a two a and opposed this vessel when a motion to compel arbitration is pending and in the countrywide case it didn't involve forty one they two it involved a remained under the declaratory judgment act so it's different but that was discretionary in very much the same way concede that they're different but this all harkens back and judge fletcher harken back to judge marshall's opinion back in dean witter where we were talking about the discretion of a court in the face of an arbitration motion to apply the intertwining claims and they were so intertwined thinking was that at least in three circuits followed this rule that including the ninth circuit that you could in the discretion of the court refused our cinema claims to arbitration because of the complexity of dealing with some claims in arbitration and some not some circuit and it was a split in circuit and that was resolved by judge marshall's opinion but what is important from judge marshall's opinion i heard it i can read it if you have it is he talked about the fact that the f a a robs the district judge guess practically speaking now whether we would you want us to send it back to the district court and i'm just trying to figure out why should we force the district court to decide the arbitrary ability of a claim that is the fact that that case was decided by majority i mean it's like finding the party judge i'm not arguing that but what i'm my point is there's now a pending a motion for unbind preview that was filed in the middle of the last month on that so we haven't finished writing the story choice well i understand but if you were me and as i'm asking you to do then the judge would have two choices she could follow that precedent or wait r or put it a hole that she was going to for this came in and wait to see what happens on the bankruptcy from we'll you know  to ask the question so so you're saying that when somebody isn't federal court with a claim that is now i'm not subject to remain and the district judge lacks discretion to allow voluntary  i think what the judge should have done is allowed a response to be followed as doing for ten days rather than ruling today's and in that response to the argument would have been the argument that's made in the papers here we've been there's a prejudice about forum shopping that that's you're right i mean you because you have the right to do that what if you look at some of the cases and the one of the cases that i think to look at one of the case and instructive if i could ask the question and that's the morris case the pendency of arbitration matters i it seems like that that's even a more drastic step to me to dismiss once a case is an arbitration than what happened here so if you can address that sure over the case and the federal prosecutor under forty one p would be would seem to be appropriate and i'm not sure that case it doesn't mean that the court couldn't dismiss this case your honor what the court should have done is allow for rule on the motion for to the bell either if she or we're not encouraged to rule on things that we don't have to and if there's a dismissal motion for some missile i mean saying i just want out of this not i want to go back to the state court or the motion to i'm just trying to figure out policy wise why we would do it and then it seems to me that morris is a more i agree just case i guess in terms of in that case it's precedent saying hey a district court there's an agreement that's enforceable between the parties and then what's important about all that is if the court rules on it then the appeal of that ruling which is of right if it's the night is a denial of appeal not an appeal as a matter of discretion so that's where there is real harm here and that's now as to what's still as i guess why is the harm when it's a disposition got me if it's a motion to remain but i just i'm just have a little trouble when it's a motion to dismiss well the under forty one that's right it end for instance in morse the court of ari granted he sent the case arbitration it was just retained jurisdiction that you're not proceeding to take it back and tossing you out which i have no disagreement just i'd have an application in my mind to this particular set of facts let me ask the question in different way now putting to one side for the rule forty one let's assume we have a straightforward filing in federal court motion for arbitration right plaintiff then files a forty one motion and says i want to wasn't really addressed and the reason being there is no more prejudice at this point the didn't they dress prejudice in their reply motion to compel arbitration yes gaining with california supreme courts the skinny really some discourse said we're not going to agree with that we think the opposite and so the appellate that time wanted the district court in our case to rule on it hoping that they would rule the same way as some other just records in refusing to adopt is staying in and that's the harm that they're saying they suffered because they didn't get that that very opportunity to make that argument well two months ago your honor the ninth circuit issue its ruling in would refuse to comply with his gaining is out the window now if we go back like you said what happens we go back if we go back i understand that but i'll tell you i'm troubled by this case i mean this is a really unusual and novel situation because  countrywide and all the other thorny regarding arbitration makes it pretty clear and is becoming increasingly more more clear that you know the district courts especially have less and less  discretion and have to decide these arbitrary motion to compel because the way i read the play in terms of section three is that a district court has to research the merits of an arbitration more motion before it can exercise its discretion to get rid of the case and i'm looking at the federal arbitration act that says leave it says leaves no place for the exercise or this was the dean witter case where the supreme court says the federal arbitration act leaves no place for the exercise of discretion by a district court but instead man it's that the district court shall direct the parties to proceed to arbitration on issues to which an arbitration agreement has been signe and then we said in country y that the expressed terms of the statute do not allow the district court to abstain from granting relief in a can in cases where its jurisdiction is proper and the jurisdiction here was proper and then also if we look to section three it says or it requires a federal court to decide an f a a motion that is properly before it so i'm just trying to figure out why  was being disputed i mean that's one whole purpose of the reason why drop the class action wasn't correct on all right so once that happened why wasn't the district court required based on all of this  not going to i'm going to dismiss and i'm not going to make any sort of substantive rulings before i dismiss i think that's within the district court's discredits your best authority that's the morris case but it mor they had gone to arbitration so there was no issue about ruling on the motion to compel that's correct that's a little bit different than here but because they did the defendants or  other sparty had their ability to have their or their case you know go to arbitration the problem was that there was a failure to prosecute down in arbitration so i'm struggling a little bit i mean what i would say  no the court still has discretion to decide whether to dismiss this an even man in my point is though that the other side in morris had the ability to have to have there there are a case go to arbitration the motion to compel have been ruled on so there's in some way you look at it less harm to them in that in that case because it's like well we tried and we had the ability we were not denied the our opportunity to have the corps to make the decision but let's look at what would happen in that case we would be at this very same place the court would simply deny it based upon the recent says look zadok a matter and we'd be sitting in court there would pother claim i'm sorry i did your original state court complaint include a paga claim yes and class action yes i'm right and i suppose now people aren't doing any more in california court judge where she didn't want to roll because she knew that the supreme court was going to say whether or not this had to be pretty soon she knew that and she didn't want to send it to arbitration if it was going to significant turn in at least where the law was at the district court level there's a number of those cases cited it's not important at the moment in the sense but here's what really could happen here if it goes back and remained the judge as i said either didn't either denies or she  grant arbitration at this point because it's gaining at because the cop is binding authority so she either denies the arbitration in which case my client then has under section sixteen a denote a right of appeal and they want to pursue that to preserve its rights to see what happens on decision which was in the in the briefs is the deprivation of federal form and frankly the paga claim could pursue it could proceed in court in a federal form as well as it could in state form and my clients have the right to select that and selected it and we want more bread time for briefing and under the local rules they would had fourteen days to respond to the motion to dismiss the judge acted in two days without any reason just granted the motion and had that been had my client been permitted to respond under the  rules as it should have been and the local rules then the question before the district judge and her discretion i agree would be whether or not form shopping is a legitimate reason to deny other quest and there's a number of cases cited in the briefs were that in fact is the issue one  i'm not going predict what happens but my clients was prejudiced before by the fact that their motion to compel wasn't ruled on which prejudice their rights of appeal under section sixteen of the f a a which would be a denotable right to appeal and we never got that ruling because the judge