wal mart was presented with a jurisdictionally indeterminant complaint and therefore began investigating to determine whether it had a basis to remove to be cleared the right to remove was not apparent on the face of the pleading after the maximum extension to plead had expired on the final deadline to do so under the state courts rules wal mart filed its response of pleading challenging the sufficiency of plaintiff's allegations there after no briefing was submitted on that tomar no hearing was conducted by the court to be clear no opposition no reply no hearing and the case was stayed throughout when wal mart completed its investigation it removed under favored  jurisdiction and removal when it did so it had in no way waived its right to do so to find a waiver here this court would be required to do five things first it would have to hold the defendants can waive a right to remove before even knowing that they had that right second it would have to reject overwhelming authority that the mere filing of a pleading challenge does not waive a right to remove even entered the traditional diversity jurisdiction third this court would have to hold contrary to overwhelming authority that merely acting on deadline set by the state courts waves still undiscovered rights and that litigants must tie their hands behind their back in advance to be able to later exercise any right they might subsequently discover for very importantly this court would have to reverse this court's decision in actions that it is strategically advantageously for it to remove because the state court has shown itself ill disposed to the defendant that's the holding of this court in rough none of that is remotely present here but even if did in this case well they we need to win that argument even to be able to argue there's to reach the issue of whether or not this was an appropriate waiver so the question there the court as i understand it is phrased is was jurisdiction do the actions of parties during the litigation create or reject the court's jurisdiction because that's the argument their argument is that by my client bringing a motion a demurrer in state court my client's actions somehow determine this court's jurisdiction to me that makes no sense we don't create the court's jurisdiction the court has jurisdiction the elements of kaffir are satisfied here the real question is as they're arguing it doesn't exist here because we didn't wave is this a procedural defect importantly procedural defects can be waived by the parties which is why the court should not intervene now the problem here is no no we didn't brief this in our brief we don't want to be in a situation where this court rules that judge real should not have acted to a spine to send it back down just three days later they re tender the issue judge real he does the same thing and we're back here again so the overarching issue as we see it is whether or not this constitutes a waiver of jurisdiction and it it just it plainly doesn't and the fifth thing that this court would need to do in order to so hold apart from the four sort of parade of horribles that i've presented is the court would need to issue a holding that would force defendants like my client presented with an indeterminant pleading to improvidently remove at risk of sanctions for fear that if they waited longer they would lose the right to remove that they hadn't yet discovered none of this makes sense no law no logic no equity supports that outcome not even the decision the forty that the judge absolutely overwhelming case law does now we exchange simultaneous briefs leading into this briefing and so ships crossing the night in part or for cases that are cited by plaintiff in their papers that were not previously cited in the application to get before this court i'd like to just briefly go through those because we really didn't get a chance we had a couple hours they filed a little early we did our best with it but we didn't really fillet those cases as i'd like to now the first case they said it was a cost of versus direct merchant's federal jurisdiction was plaid on the face of the pleading there's no question the defendant knew of the right to remove and did not do so instead it acted in the way that it did but even that case holds merely filing a responsive pleading does not invoke the state's jurisdiction so as to constitute the waiver of a right you've listed a lot of things that we would have to decide in order to rule against you yes in order for you it seems like we wouldn't have to decide all those issues maybe the narrowest one would be this one you just mentioned that the pleading that you were responding to didn't show that there was jurisdiction i mean is that all we need to say to resolve this i think it is because you can't waive a right that you don't know you have most importantly and the standard in the ninth circuit is whether or not the case after it becomes this is the quote a defendant may waive the right in this is from resolution trust a defendant may rave the right to remove to federal court where after it is apparent that the case is removable defendant takes actions in state court that manifest his or her intent to have the matter judy kitted there and to abandon his or her right to a federal form we didn't even know we had a right to a federal form it is simply axiomatic that there was nothing to do we even need to wonder about what you actually knew or do we only need to look at what the complaint said the court needs to look at what the complaint says and ruff addresses this as well the cour are not to speculate as to what the defendant could have discovered you're not penalized for not investigating sooner and that we work product frankly for us to get into what we knew but when we got that and the pleading is complicated i've actually just before stood after i pulled out the class definition to illustrate how tough it is to figure out whether or not you have the removal indeed tough to figure out whether or not a person would even be a class member such that we could then calculate his or her damages this class definition there are multiple parts but the ones we're relying upon are i'll just use one example all persons employed by mark wal mart in california during the relevant time period when after suffering a workplace related injury while employed by wal mart were required by roma wal mart and or health works a separate defendant to submit to a drug and or urine test with health works took said drug and or urine test and then were terminated by wal mart due to the results of said drug test and other classes for refusing to submit to i mean that's an enormous number of criteria for us to try and figure out who's even in the class then to go back and calculate past wages back pay the objective measure of action but given the proclivities the well known proclivities of our friend judge real that we really have to reach the marriage in this case or we're just whistling dixie you're going to be right back up here because you'll just reenter the same orders that your position and i'm not state court i mean particularly where it wasn't briefed wasn't heard the case of state etc followed by a prompt removal upon the basis removing made apparent would not constitute a waiver of jurisdiction maybe i don't need to do it but city of albuquerque is a non catholic case it applied a presumption against her move which this court and the u s supreme court and archer he has held clearly does not apply kathy favored not presumed to be contrary traditional diversity was played on the face of the pleading both the mounting controversy and the citizenship the diversity is in ship of the parties and they're even before the defendant was served no compulsion even to appear in state court the defendant charged into state court filed motions answered and such even then the court said we will not find a waiver of the right to remove when a state's procedural rules compel a defendant state court spatial exactly what was the case here it goes on to say that soto the defendant that case jumped the gun they didn't need to do this to face the pleading allow them to remove they jumped the gun even before they were compelled to act they invoked the court jurisdiction to grant to relieve diversity roofing corporation other non catholic case pre rock the decision rough uses the wrong presumption as articulated by this court nation started by the u s supreme court in dark cherokee the plaintiff father a arbitration the defendant that case moved to court on the first day it was served to enforce arbitration in a summary proceeding even there the court holds it is well settled that merely defendant took his dimmer all the way through decision but in that case the court did the ruling the court was you waited more than thirty days where the face of the pleading allowed you to remove it was  apparent from the face of the pleading that you could remove it did go on addicted to say oh and by the way you found that the marine had it heard not the case here zero authority cited by the court for the proposition that that would constitute a waiver indeed the only case proximate to that decision to that holding in which is dicta i believe the only case it cited in the opinion that's proximate to that dicta is the use of zeta case in which the eleventh circuit clearly held questions but i want to address whether there's a factual finding within the order that must be given clear air review because i think of a waiver issue in this context as a combination of law and fact and ultimately judge had the factual record from the district from the superior court before him and made a determination of waiver when you look at the key piece law in this context and waiver you've got to look at what happened below and there has to be a determination of the intent by the defendant below i think that is a factual issue the should be looked at from a clear error present doesn't involve credibility it doesn't involve that possessing testimony i mean he it's really a paralegal question isn't it about how to read what the procedural posture was of the state court record i don't understand how this is the type of thing that we should view as something we defer to the district court when we're looking at intent i think it gets us there and i think there are facts well maybe it would if you had testimony in the district court a hearing about what was your intent in a state court but you didn't have that here did you he did it's a sponsor without a hearing of the no hearing no no testimonial evidence so let me then you may be beyond that though let me go then backwards two i think the real distinction is is the way we're looking at this is actually think there's an easy way for defendants to not be in the position they are here my colleague does a good job of of his five points in it seems like an impossible scenario for defended i actually think step number one there's a very simple way to comply with the court rules like was done in the resolution trust case and not have a finding of waiver and that is when you file your brief make it clear you are doing this as a defensive measure to preserve your right to continue to investigate if that's what was going why does remain a difference i mean it so ok yes they could have put a sentence and that said this is not a mere filing of a pleading let me step back for one second when you when you go through and i think the city of albuquerque case really gets this issue states at most most correctly their cases so disting remove on the eve of trial i mean that's certainly a commitment to a state proceeding is it not in this case there is nothing on the face of the complaint that suggests that there in fact an ability to remove based on kaffir for any number of reasons you didn't know that until later they filed the removal on the very last day that they could they waited can we interpret the factual record of what happened in the superior court is indicating an intent to invoke the decision making a mistake or you're saying they're going to waive our right and as you know the case law makes it very got to do a lot to show you're going to give this a new then if we are to me there's a difference or two different scenarios one is i fell multiple different scenarios and one of the cases mentioned a state court rule required emotion to dismiss within twenty days of service remov al was thirty days clear situation state court rule required the filing of the motion to dismiss it was not it was a necessary defensive action at that point because of a conflict between the two rules my point in this anybody could have been raised in a dimmer and they weren't i believe so i have plenty of times you have seen and it happens all the time in state court that a judge when i know you filed simultaneous brief spend he argues otherwise so what is your authority to respond to that actually when we look at his argument otherwise he doesn't give us any details he simply says generically the statutory scheme is a little bit different than the j the judgment of the pleading scheme is more narrow than the dimmers scheme but when we look at the arguments they ra look at their demur they attack the merits of every cause of action class wide cause of action on the merits those identical attacks could have been made through jane of the and what is generally already what is your authority for the idea that you don't waive it by not raising  tomorrow i i i cannot cite authority at this moment i would have that issue not having been part of real briefing with a simultaneous briefings i did not independently research that i'm just relying on my expressed experience of seventeen years of state court litigation where i see it happen all the time to be candid so if if we if we look at it from a perspective that that they file the demur challenging every single bit of the merits of every single  scheduling order of a superior court judge that specifically said summary judgment must be filed party complied with that specific order was not a waiver here they could have done it very differently here they could answer with respect we're talking about this a catholic case the congress has made very very very clear that calf is a favored remedy period we have to deal with it that way you have to really and the case law i think is clear that you do not intend to elect calf and in this case there is no such finding they're not even close to it so i'm really struggling with to do that so let's talk for a minute about the merits i know you're kind of talking about the merits here but you will me just ask you this are do you agree that that's really what we ought to be focusing on here is the merits i see the wisdom remove and it makes it very clear that the waiver removal i'm using its word must be clear and unequivocal where is that in this case other than the simple filing now the response to the demur which was in their paperwork in the rehearing petition in the court of appeal resolution trust quote specifically stated it intended to remove and it made the petition solely for the defense of purpose of preserving the status quo pending removal so that's one way to comply with state court and not wait to know what they did here absolutely not there was nothing in the demur papers that said anything about preserving rights to remove the may have to say that i mean why not get one they did was to preserve their right by not giving in to fall to the other action if they would just say that you had moved for a default in the state court and gotten a judgement would not be the end of it yes ok so they were preserving their right not to have that done right i think that's where we disagree i think it could i think that and you're obviously in charge but i think that's where we disagree recognize that i think that when we look at it from the different perspective from the perspective of the courts are going to have to look at paperwork record of what happened in the superior court we want to create a rule that gives clarity there's a very simple clarity in fairness a combination of the two it's it's  i think it's proper to have a rule that says very simple rule to comply with if you're going to believe you have to take action in state court you need to make it clear that you're doing that because you're under a compulsion  say that you have to state whenever you file something in state court that you're still planning to remove but how is that consistent with roth's where brothas you can go all the way to the eve of trial because i think rotten really a different issue in if i'm wrong about this everything falls but to me roth is not looking at the question to the position roth is talking about if if your rule about waivers i think that roth is talking about in the context of the thirty day rules under the removal statute and that rationale that roth gives in this context doesn't necessarily have to apply in our context of common law waiver principles except your principle which would avoid roth ever arising wouldn't it i mean how would you ever get to the eve of trial it without a waiver under your theory of the world absolutism there's a way because there was and it is faithful to the graver rule as well i don't count a lot that as you don't know on the face of the complaint which is what they were looking at there was no basis to remove at that point they had no idea what the amount was they didn't know anything about you know what what what they needed to know in order to remove so you're basically saying they have to infer from what's on the face of the pleading at that point to say we're we're we're going to reserve our right let's just say it's even worse than what you had here you do you have an action but on its face there's no possibility of removing it doesn't meet any of the requirements you're saying that in that same situation you would require them to put in something you know in the event that the plaintiffs ever amend their complaint to allege what is necessary for us to remove that we intend to do so as i would you're saying i think it's a different hypothetical i mean to say i to say that in a class action of this nature where wal mart who employs so many hundreds of thousands of people in this state when our class definition included every person that was subjected to your job or injury unlawful we believe workplace drug screening testing process that class definition is clear that this is a ton of people and not the one element that don't want to correct but there's i just think there's there's nothing in the record actually that actually establishes approves up their contention that they did not know this was really will meet in order to be successful on the merits that we have to adopt your rule to create an obligation to basically prophylactic we state if they ever amend the complaint in a way that makes it possible for us to remove what we intend to do i think that it no i don't think that's necessary i think i think the preferred rule should be that because it's a black and white one and it's simple to follow if but the waiver principle the waiver case law is more nuanced than that so there are clearly some times where this case is could be filed that removal isn't even a chance in today's world in a class action of this nature given calcutta there's no way wal mart in this these good defense council didn't know there's a possibility of removal is there hands reason why your rule of making someone say over and over again if i ever get a chance or move i will serve any function i mean i know you want that role because it might help you win here but other than that what is the purpose of that to rule i i think the purpose of the rule would be i guess you admitted there was no prejudice to you from the lack of their sentence in their brief saying we will remove if we can so given that you have no prejudice i just don't even understand what the point of six year old would be because but i just think a better rule is one cause this party is to get the removal process going and doesn't preserve this idea that we can litigate in litigating litigate and then at the last second remove tactic that maybe we should just say you can't let it get in let it get and let it get prejudice the question is did their actions indicate an intent to get the state court to rule on the merits their actions by filing a demur when they didn't have to and they could have preserve the status quo otherwise and their actions of not at any the point is so obvious that we are now reduced to arguing that unless you state in every brief you filed with the court oh by the way i reserve any rights not known or unknown that i may have in litigation you have waived them that's that's the core argument that's just been advanced to you that's before in two thousand and fifteen the ninth circuit sort of eliminated the ability to remove under cafe with assumptions speculations logical with a concrete demonstration of the basis to remove and that class definition yeah we're a big employer but how many people took a urine test and were within a short period of having fallen  in the in the premises of the employer and then lost their job because they refused to take urine test or because of the results of the urine test that takes time we did a pretty darn quickly but it doesn't allow you to  court and remove until you've demonstrated the basis for removal because what happens you get remanded and sanctioned that's what happens i also find remarkable the assertion that we'd be in a better position had we told the court we're go remove in a week and a half but for now we're going to file the demur you've just i mean that makes your showing worse now you've admitted that you have a basis for move but you're not doing so we didn't have that basis we had to pull together these facts in the court really shouldn't be you know and i'm not suggesting you're prying you know unfairly but you know this is work product this is the attorney client communication this is what roth addresses by the way i was counsel in roth we not submit in our briefs by the way we don't intend to waive any known or unknown rights from this point forward in importantly what you understand in roth having said that we didn't wait till the eve of trial we didn't remove only after strategically advantageously fact the ninth circuit said none of that is present here but the logic of the catholic statute and the rulings under it would allow a defendant to remove even at that point we're not even remotely close to that we respectfully request that this court reversed the district court's decision and i thank you for your time thanks to both counsel for their argument the case just argued is submitted