on appeal in a state court it's already in the appellate level and that creates at some level a different complication because at that point you don't even have a federal judge in it even though you have a final judgment in state court and went to a state appellate level first and when you have a normal removal ninety nine out of one hundred times in the early part of a case even after state court decisions you know if we get to a point where after final judgment court decisions like for many junctions or other kinds of decisions simply finding as most courts have that those decisions are actively federalized can i ask you about that because i think you're it's it's clear that it's federalized in some sense but the question is whether it's an order of the district court or computed and twelve ninety one and that's where i'm having trouble is there any circuit that's how old that it is what are we review and why don't i i just i don't believe that in this in this in these instances there needs to be essentially a whole new process i think the federal district court can in almost a ministerial way acknowledge and accept it as its decision did that happen here well it's just two contacts in which arguably that happened because i think it's clear that the federal district court certainly isn't compelled to get into the granting our motion specifically to extend the time to appeal this order that was now a federal district court order functionally that made a move that made the clinton junction order of the district court why it acted on a motion usually considered as a valid notice and not the society we find counsel to make it seem less a fiction that we are actually reviewing a decision of the purpose or what would be wrong with a rule that requires the federal district court threw in some formal sense adopted as its own not sort of leave it as a kind of presumption that it has adopted but actually required to take some formal action to adopt it it could perhaps do that in a very summary way or it might as drug barons suggest actually look at it substantively and apply the federal planner in charge standard what's in effect which is different in saying it's an order it in fact remains in effect as the state eliminate injunctions not dissolved until the district court dissolves of but i guess what does the president's asking what i'm looking to know that says the real question here for today is whether that's already already the rule as opposed to sitting down and creating a rule what the rule is today based on the way most courts i believe has interpret d that particular section is that it does have the effect of officially federalizing and i understand the court's distinction has you can federalize it in some sense but not me on every sense  if the decision were me to go through different exercises then to me that could occur but that's not really what we're working with here for an existing rule and most courts deal with this federalizing i do think the adams piece of these other cases we've already had a final judgment and you're in a state appellate court and so you haven't even gotten to a final if it's the federal court and you have final judgments which have a quality to it to be a quality to be different in some  accept a state court order certainly can take action to dissolve it or amended or do whatever in the normal course but it should be deemed to be that courts award or functionally upon remov i'm trying to figure out how the district court has subject matter jurisdiction i'm trying to figure out why because it seems to me that there's a contract provision which makes dispositive the issue  the ownership of the copyright and it's simply a matter of interpretation of the contract and application of the contract and i don't and i'm having difficulty seeing where there is subject matter copyright a copyright claim essentially in disguise because they're seeking basically to enjoying the injunction is to enjoying publication based on a violation of copyright  initial complaint or and or in the car it's a copyright claim if someone has to home components to a complaint one is the state law issue of under the contract who owns the copyright is count t law matter that's a threshold question yes is the argument that the existence of the threshold state law question is not a problem for jurisdiction because it's just pendant to the additional federal copyright claims that there federal copyright claim in the complaint is that right there is no there is no mention calling it that with this seeking employment injunction once you've established this isn't do you know of a case just this is the question do you know of a case in which you know you use if i bring a contract action in state court under state i mean and federal court in a federal under state law and i seek a remedy that's not available under state law i don't use if we were looking around the statute books to find a statute that would allow that remedy that i might have pled let me just say you don't get that relief under state law so what the district court seemed to do here is it's it was interesting relief that you couldn't get under maine contract law you must have been pleading federal copyright law but in fact there was no federal copyright claim clad so in that situation why does it make sense to say in fact they must have including federal copyright law because when once you establish the ownership the state court action was clearly then after that seeking relief that required the determination once you determine who wants a copyright you can't get injunction for violating it you can't count the the issue of whether this particular mention that amended complaint on its own would have generated federal jurisdiction it was just one of the components that were violating copyright which would require did determine who owns the copyright to an article doesn't even answer the question of what in that article actually is protected by copyright you can enjoy somebody from publishing an article any kind of contribution is probably and to the analysis i could build somebody a dac and the consideration could be the copyright for the spirit court judge to accept their argument that the contributions that myself some of them anyway state law contract issue the presumption that regardless of what the parties just come from you're confirming the point that this is not a copyright dispute you're saying that the judge made a mistake because he imported into the contract analysis copyright concept that really has nothing to do with how the licensing agreement should be interpret this into this again judge thompson's indicate it's the licensing agreement that is at the heart of this dispute and an injunction was sought because of  jurisdiction you don't have to plead the claim it's enough to seek a remedy under state law that state law doesn't provide and because state law doesn't provide it the district court will assume you put something you didn't in order those arguments and i mean ultimately obviously the court needs to decide whether it has jurisdiction i haven't ever been involved in a case in which a motion to remain has been denied by the district and i think for all the reasons stated in those briefs we believe this problem district court probably denied the motion court did have jurisdiction based on the analysis in the case from new jersey that the court cited to us that it does get that relies and so that was the presumption that we were operating up in that case if i remember it wasn't the district  there basically trying to figure out whether or not to defer to how much weight to give to the state courts primary injunction order which is a different issue here we don't know what the district court thinks of the state court order at all whether it's a diversion whether it should reject it whether lights or whether he said it hadn't said word one about that state court injunction and yet we're on appeal supposed to be reviewing the district court's handling of that order i just think that seems strange well i agree the court hasn't had a chance to look at it there was a motion to dissolve it filed by and the court deferred on that saying i can't look at that order right now because the injunction is on appeal because the court did look at the contempt motion and and ruled on that issue after those correct correct but subsequently there was a motion to reconsider filed by pick in the superior court which was denied then there was a subsequent motion more recently this year while by picking order to dissolve the motion and that's the one judge signal single said that he would not rule on because of the fact that th said i have no jurisdiction to look at that issue because the injunction itself is so if we have no politics and he's then freedom to act on that motion correct and then whatever he does on that motion that could be appeal yes and then we could have the benefit of judge singles review of whether or not a federal court should be considering allowing a clone or injunction in this case i agree so so what would be but what you say we do have a two thousand and thirteen i believe a breach of contract case and then it was amended because of the fact that the agreement had and did and the articles at issue were we believe wrongfully copied by pitt placed on the website the state court action was it was amended in breach of contract because the contract provides that those articles are o by court in this case and it was basically straight breach of contract because under at least the noble versus bangor hydro cases state one in maine the determination of who owns a copyright is a state law contract issue it into a copyright case the reason is that that under the contract the licensing agreement itself provides who owns the contractor who owns the intellectual property and the contract states that after the termination agreement one party is soley able to use their own intellectual property so it is still a breach of contract whether or not someone who wants to publish someone else's own for materials whether it's copyright or if it's taking appealable but i'm still trying to reconcile with that that you filed an action in the first instance in the court arising out of the same set of that so in some sense you believed that there was the original infringement originally the first case was in state court for breach of contract we were faced with arguments from the opposing counsel that in state court you couldn't argue  for injunction or any ownership because it's a copyright issue and in the federal court they were arguing that you you could make the argument that that this is copyright because it's all governed by state law under under contract so we were protecting our bases on both sides so that we weren't caught in between of being nowhere with no relief available either or but you didn't we both positive action in either complaint in other words one way to protect yourself would have been file a complaint that pled both the state law action and the federal copyright claim in federal court and then you would say the state law claim is turned into the federal court record and that was not done i take it that was not done the federal court case was filed copyright we did not then state also we're going to add or or or state court contract case claims to that and what's your response to the district court's contention that that state law or contract action because you saw it discor  meant and a permanent injunction must have been a copyright claim since the kind of relief you are seeking is not the typical relief that you can get on their main contra well position was in the state court we were seeking breach of contract action for ownership of the articles that were speaking breach of state law remedies as well because under the licensing agreement concordial all the articles  the this interlocutory appeal some of the merits of the argument we were put in the position of reading a decision of the main supreme court and all the arguments as to whether that  determine who owns it but then to determine whether someone's violated that copyright and one of the remedies and what to do they clearly subsumed to that into their state court action functionally no different th the oh we want injunction in the federal court action for violating the copyright the judge in the federal court said well i can act on that because ownership has to be determined first and then go in the state court and  and ownership was determined in favor of concordia if that's all that was resolved and that's all they had pled what would be the remedy for the judgment that you own the material the remedy is once copyright ownership is determined if you believe somebody has violated it it becomes a typical copyright otherwise your point is you can any of you would be entitled to any relief that's just like a declaratory judgment essentially you own the copyright now if you want to enforce the copyright provided only can be a copyright claim so any relief for the injunction must have been ephedra cooperate actions that is our guess there's no provision in this agreement that neither of us fully appreciate the subtlety of this problem but i don't see why from the point of view it's perfectly acceptable for a federal district court judge to treat a state court order  as its own it'll be deemed as its own without even doing anything and it can behave in as it as its own without regards to say comedy issues or something like that then why that is more problematic with the circuit court to say if it's a district court order for the district why can't it be for the first circuit i agree that you have to satisfy jurisdiction but if you interpret this provision to me that it's a federalized decision without requiring action at least when you're not dealing with these peculiar final judgment problems of remaining rules after appeal which to me create unique set of circumstances for a variety of reasons i just think that that  divergent from the circuits rules for a federal or injunction which in principle could easily happen there could be some wrinkle that makes it makes it very different the federal policy as i read it and in the copyright  provision is to say we want to keep the status quo we won't want you to be able to basically wiped out what happened in state court just by removing so that federal policy is completely in force by treating it as federalize no decision under federal rules so that's why i said the federal policy is the status quo so the federal courts entitle to leave it in place but he's also on how to apply federal or she federal law or injunction rules to get rid of it until that happens there's really nothing for us to review you know when mother or not you are there should be some rules for separate kinds of situations i don't believe in this case although certainly nobody's briefly or suggested it that with respect to what our threshold issue problem is with doesn't just arise when it gets to the appellate court is a problem that's sitting there in front of the little district court to what do you do when you accept these orders as your own unless you modify them is the federal district court actually  upon request think hey you should dissolve or do something to this injunction because it's legitimacy you could have a perfectly legitimate but because of this difference it actually no longer meets the federal standard you know that that's not an issue here now whether there should be separate rules for that very unique kind of problem which is kind of unique problem i think i don't know but i don't i don't see that fundamentally does a problem in if you're going to say a court order during a prior to removal then the case is trucking along a court order is federalizing is the order the functional equivalent without having to do anything of the order of the district court that it shouldn't be that problematic for if it's an come up in the in the in the normal course you know differently and that there isn't a requirement that the federal district court in gauging the substance of it before that occurs because it's already deemed to be it's order somebody can go ask them to change it as an alternative to appeal or they can ask them to reconsider we had we couldn't do that because the motion to remain was pending and the clock is ticking on appeal we to in motion to dissolve or motion to embrace whatever being filed at which point their signal could act on that and then and it's like to repeal of that work arise that right o