timely such that it was error for the district court to dismiss the class claim to the outset of the litigation and secondly whether the court had jurisdiction to consider the motion to intervene for purposes of appealing a dismissal of class allegations at the conclusion the motion to intervene in summers was untimely in part because that would be intervenors knew of their interest in the case long before the filing of their motion doesn't that factor weigh against the here as the supreme court held in united airlines first mcdonald absent class members are entitled to rely upon the name plaintiffs to pursue their interests and protect their interests until those claims are dismissed individually and it's clear that the  nameplates have no intention of appealing and that is not clear until they had filed the stipulation of dismissal while martin's argued that because there was a agreement in principle that the district court was notified of a couple months prior to the stipulation  that that put the put the absent class members on notice however until there's an actual settlement there is there is no settlement in fact the record reflects here there were two extensions of time needed to settle the cla eight of the original plaintiffs and the third extension of the form is a little actually reached agreement with wal mart frankly is filled out last paper was signed it was not at all clear that the parties were going to be able to reach an agreement and if you look at  the sixth circuit decision in clark versus about his health care there absent class members who sought to intervene prior to the judgment were deemed to not be permitted to intervene because the case was advanced in litigation and it was too late for them to intervene in the litigation but too early for them to intervene for purposes of appeal and it was only the later intervenors who sought to intervene after a voluntary stipulation of dismissal by the name plaintiffs those were found district court's ruling the district court didn't have the guidance of this court's recent decision in summers versus bank of america in which the fifth circuit held that our case law does not forbid intervention and it jurisdictional and procedurally proper suit that has been dismissed assuming argument that the district court did have jurisdiction over a timely motion to intervene what what what result intervention should have been granted we have absolute class members who do we render allegations if this court chooses to remain on to the district court then a decision there will be made an intervention and the next and then there would be another round of of arguing this on appeal i think given that the arguments that have been the four who did file the charges wal mart argued that they had not received right to sue letters and that that was a fatal defect for intervention not so the fifth circuit squarely addressed that issue in pinkard and side that where a right to sue letter is received after the filing that cures the defect in the case can proceed so the arguments raised against intervention are ones that fail on face and therefore it makes sense for this court to move on to the heart of the matter which is the timeliness of the past claims that were originally pl argument that intervene are present here the eleventh circuit heard oral argument on these very issues just last month that no decision has been issued in the eleventh circuit and although not in a woman case the seventh room there were three generations of class actions that were ultimately consolidated and brought up on appeal and classification had been denied in the second generation case and that decision was affirmed by the fifth circuit not on the grounds of class member claims here on the date that the old case was filed well that was just shortly after decertification dues and everybody agrees that on that date class members had timely claims and that's the date that is relevant for purposes of  the stipulation that's the holding of small biz pros this court present small business pros and there is no jurisdiction of the courts cannot expand it under rule eighty two of the photos of civil procedure which says that jurisdiction can't be created so when i twelve and this court denied you know like a tory appeal request on march nineteenth two thousand and thirteen on that day they were well on notice that it was quite likely if not certain that the decision in this case remember this is the second the people in this case in the first appeal this court said and this is seven forty seven after page three twenty quote tolling does not continue be a different question with the jurisdiction of the within the discretion of the district court in the region that the court had jurisdiction to region and there was certainly a window in this case your order between march eleventh two thousand and fifteen when but some cases i assume would be done all in one fell swoop on one day so there never be an opportunity at that point well if you're on the side there's no thirty days your honor was webber and her partners represent both groups of claimants has different jurisdictional consequences you know there are different paths to the same result that what the packet was chosen here has certain consequences that have to be enforced by the courts which is what the district court did here in other words the manner in which this case was settled and dismissed cut off jurisdiction that and that is true across the board of course those are clear rules that need to be applied uniformly even handedly and consistently and we violate the whole orderliness in some way that there is in there is a rule of orderliness if you depending on how somers is read right that's you're relying on summers and then but you're not the reason is this your honor the stipulation in summers recites forty one in a one way however it required an order of the district court to implement therefore in operation it was forty one  for sixty one according to the text of forty one to one a two in our president a district court jurisdiction over a case that is settled the voluntarily dismissed by stipulation cannot extend past the filing date absent an express contingency or extension of jurisdiction neither of which we have in this case so that's the rule more than this issue with respect to summers and how the stipulation is characterized in summary in our case we have no question about that there was no court order requested or required it's clearly the stack in question this court has long held cells all cells are calderon was in fact its first circuit court ruling on the anti stacking rule that has now been followed by every other circuit to consider the question  and it makes sense it makes sense for exactly the reason that this court said in this case in the previous decision in this case holding comes to an end at the decertification ruling because american pie is a balance it strikes a balance between group twenty three on the one and statutes of limitations on the uk it cannot be indefinite for him to quote this court again tolling does not continue indefinitely there must be a cutoff point and it must decertification ruling this court in florida confirmed that that is the cutoff point and in this case that's when the supreme court ruled in duke's and the following extension by june prior agreement of the parties what the plaintiff with the proposed intervenors are allegedly in the eighteen maybe eight we're in two thousand and seventeen your honour's if this is not a case of indefinite tolling it's hard to imagine when that would be the prior precedent rule as opposed to the rule reporter not enough overruling must be quote unequivocally directed by the supreme court my friend cited two cases move in shady grove between the two of them they mentioned tolling exactly footnote ten of smith in a manner that confirms this court's salazar color wrong rule it says after certification the former class numbers have to file individual suits which is exactly the position that this court has always taken and that one more takes in this cases were based on collateral estoppel and therefore they don't apply that's just wrong collateral estoppel are reclusion was not mentioned as i was or calderon and has never been mentioned in any of the other second cases that have been followed by the that basis this court doesn't ever need to reach the polling question the stacking issue of smith versus bear phipps or anything else that's correct because they are only standing if their motion are being properly denied they have no standing to complain about  grant it we very much think these are years and years too late for these men that that's a different question as to whether they've met the prerequisites absent or lying say it two different arguments as to the two there's two groups of proposed intervenors and we would make both of those dismissal doesn't take it out of rule forty one and put into rule forty one a two as my colleague suggested the court in summary is very directly addressed jurisdiction and said specifically that small biz pros does not stand for the proposition that a voluntary stipulation of dismissal deprives the district court of jurisdiction that could not be clearer than that but even setting aside the very clear dictates and somers it's the absent class members they could not do so absent the fairness hearing approval by the district court so that they cannot achieve the same result by the fact that the dismissal of their claims following individual settlement was by the way the stipulation rather than by way of a joint motion to rule otherwise would provide defendants an incentive to buy off name plaintiffs with excessive payments of over and above the value of their individual cla just to get the side benefit of preventing anybody from later moving for intervention to appeal a denial of class certification even though the supreme court in united airlines worse mcdonald specifically recognized the importance of providing that right respects your honor yes and and that could have been that and if that could have been done that would have been one option but united airlines specifically addressed the issue of timeliness and said it was appropriate to wait until the conclusion of the litigation to see if there's going to be further action by the name plaintiffs the suggestion by my colleague that the intervention should have been sought after class allegations were dismissed or at least after interlocutor should the name plaintiffs had an interest in continuing to push the class allegations even after they were originally dismissed it would have been equally plausible for the putative class members to expect the name plaintiffs to go try their claims get a judgment on the merits one way or the other and at that point the name plaintiffs without any interviewers would have the right to appeal and have their class allegations reviewed by this court on appeal so there is absolutely no reason for absent class members to believe that they had to intervene prior to the completion of the litigation which is the date that the supreme court set is the point to judge timeliness in the united airlines versus macdonnell and this would be consistent not only with the supreme court precedent and summers from this fifth circuit but it would be consistent with three other circuit courts that have considered and excepted intervention by absent class members after cases have been dismissed grew forty one stipulations of dismissal whether or not they explicitly addressed jurisdiction in the text of the decisions the courts obviously were satisfied that they had jurisdiction or they could not have issued those rulings not only in clark in the six circuit but also in quickie versus starbucks in the ninth circuit and show up in the fourth circuit which held that it was required for a district court faced with a stipulated dismissal in a case in which class allegations had originally been part it was in pacifically said that small biz pros does not stand for the proposition that you're opposing counsel's articulating and it doesn't violate the rule of law really it was addressing it and limited the other case before it applied the law and we say therefore we had there was there is jurisdiction that the district court had jurisdiction we were manned and that could be the whole thing is that i know you wanted the whole you want to win the intervention but really the issue is the jurisdiction before it's certainly the court has the right to make that ruling and to simply recognize the jurisdiction and remand this back to the district is that what you want us to do it  i mean we really think it's appropriate for the court to recognize the intervention and move on to the tolling issue as well but at a minimum we certainly would request that the court recognize that there was jurisdiction to address the intervention motion  no additional tolling is going to occur from the second class case for any future cases but we're not depending on any further tolling here the only tolling we're seeking is the original tolling everybody agrees we had from dukes and future because only cases that were filed right after the conclusion of duty would be getting the full benefit of tolling and there be no new tolling rights created thank you thank