open proceeding there's been no final the creek closing  another important point the judgment tally explained in the p g a bankruptcy opinion is that when lifting and automatic stay the bankruptcy court must decide whether it related personal injury cases should proceed in federal or state co bankruptcy court makes an order even if that order is wrong it can't be collaterally attack or changed by district court the proper procedure is to either go back to the bankruptcy court and have the court modify it or appeal it in a think of the court but that instance and there's a question as to whether that's a jurisdictional problem the fact that the removal had an extra person in there who wasn't allowed to be removed and now you're throwing those using those ca jurisdiction again is a creature of statute it's something more limited than original subject matter jurisdiction in the article three sense and that's why that's the whole question facing this court whether the situation under fourteen forty seven eat because we don't have we don't have a lack of diversity anymore but we still have a lack of remov  then why do you need for the rest of the ca quote simply because a district court commits an error even one that would ultimately require a reversal on appeal that's the canvas against which we have to address the no local if an issue it's an interesting issue and i'd like to address it but when seven o eight circuit courts have held as we are contending should be the case here and that is that remove ability is a procedural question and not a jurisdictional one and where there is no us to clean court or decision of the that you point out and that is typically where removed ability or where there was a problem with really bill the at the time of the movie and the question was whether or not that could be waived and whether that once it was cured of whether they could simply look to see that we have subject matter yes and let me suggest to you an approach that i think makes everything almost perfectly clear and fit almost perfectly if we could get away and if this court could get away from the notion of removal jurisdiction and if we instead substitute the term remove ability a whole lot of things make a whole lot more sense we have subject matters your station in this court based upon diversity of citizenship found in twenty eight u s c section thirteen thirty two when i was getting ready for this argument was tired of looking at the limbs and the trees in the park and all that stuff and tried to look at the forest i step back and realize that thirty thirteen thirty two is found in chapter eighty five which is in titled district court semi colon jurisdiction section fourteen forty one fourteen forty seven the ones that deal with remove ability are in chapter eighty nine which is entitle district courts removal of cases from state courts what you need to remove a case from state to federal court is subject matter jurisdiction in the federal court in this case diversity and the other requirements that chapter eighty nine imposes on you you have to file it within thirty days of pleading or paper that puts you on notice you have to have and importantly here if the absence of any local defendant so there is an overlay there is an additional requirement but that is only a requirement to determine whether or not it's removable you only look at whether it's removable at the time you do the removing and as your honor correctly points out there is no case that has said that when you add a party that doesn't affect the underlying diversity the underlying subject matter jurisdiction that there is any problem with the court retaining jurisdiction that's exactly what we have here complete diversity not affected by the addition nor the attempted addition of p g and e to this time we remove the case if you haven't changed that set of facts if at the time we removed which was before p g and e was in the case the district court would have no discretion there would be fair when i mean there is there is subject matter if you're a fiction based upon diversity of citizenship the but of course that is not the situation here played it's at a party who does not affect the diversity of citizenship and he added it of course almost two years after the original action was filed but in this case as i said if we look at it as a question of remove ability and one of the elements of remove ability is subject matter jurisdiction other elements are the absence of a local defendant at the time the removal is affected if we look at it that way and don't get hung up on this removal jurisdiction because i really think that that's what has led so many courts to have so many imprecise you know have original subject matters or stiction would kick in and there would not be discretion based upon some change circumstances that don't affect the underlying jurisdiction i haven't seen m classic tail wagging dog case and it's a case in which the tail here is really really tiny and the dog is a saint bernard the only reason we're here talking about the bankruptcy court order is because get to that when you look at the nature of the order here plaintiffs went off they negotiated with counsel for p g and e to obtain an order for the purpose of lifting the state p g and e s counsel drafted an order  which is in the appendix attached to our brief that made reference to the state court action in this case it was revised by counsel for planet us and sent back with the limitation that p g and e s counsel has clearly made clear now they did not intend as a condition of lifting the state and there was no suggestion that judgment holly had that in front of him that it be remanded to state court and the letter from mr had got back to p g and his counsel says that we only included that because it will probably be remanded to state court so this almost parents that a call got inserted into the order judge one tally signed it for purposes of getting the state lifted that petitioners can see t below as they do here that the issue of whether or not the case should be remanded to state court was never preached nor decided by judge one tali he was simply signing it stipulated order that had been prepared for him and every reference never been a proof of claim filed here the only diversion towards the bankruptcy court in this case was when plaintiffs almost two years after they filed the case decided to bring in p g any they needed to have the state lifted they went off on their own without any involvement on my part of my client's part negotiated the stipulated order which judgement holly signed now they try to take the language in the discussion from judgment tali about the propriety of abstaining from deciding twelve hundred fifty cases alleging chromium related disease to argue that somehow that should apply here he never said it did he never analyzed this matter  they acknowledged that he did not decide this case should go back to the state court and remain and he simply signed an order that had been prepared that included that to that effect sorry it doesn't seem to grant me judge walker permission to proceed with this matter it lists the stay but as part of that lifting of the stay says for the case in order to proceed to judgment in state court so even though it was not intended it wasn't brief it wasn't argued and it wasn't decided by judgement ali judge walker recognized that the stipulated order that he had been presented with limited  the lifting of the state to allowing the case to go back to state court so he said in order to stay here and proceed in front of me which is where i believe you should be you're going to need to go back and get a modified order allowing the stay to be lifted for  purposes of proceeding in district court and of course now they would argue that we're stuck in state court because we have a bankruptcy from which he genie has emerged and there is no longer any chapters eleven jurisdiction over conflicted with it clearly related to the bankruptcy itself there is nothing about judge walker deciding that he does not have to remain in this case that conflicts with any order that is inherent to the bankruptcy court and that's why this is not a collateral attack on the bankruptcy court one of which is that there are alternative grounds for jurisdictions like to spend just a few moments going back over the the other issue now the defendant excuse me removal jurisdiction when it when it's the basis for getting into federal court in the first place you can't simply shift to original subject matter jurisdiction the removal requirements continue to run with the case because that's how it got here in the first place and in the caterpillar case the supreme court case which we've addressed in our briefs the supreme court dealt with this issue in some ways and that situation there was a case a year had gone by and after a year went by one of the defendants remove the case in violation of the one year requirement you've got to we've got to remove it before one year passes and by the time of judgment there was original subject matter jurisdiction although that removal flock