in may it please the court your honors the class action fairness act was enacted to provide federal court jurisdiction over class actually claims precisely like those alleged by the bowers against home confirming that term to original defense i mean even judge by those who was very sympathetic to your view you know in that west would apex concurrence yet you know he understood this is you know to be a statutory problem the congress needs to i don't think it's a statutory problem your honor because i think that congress was well aware of the shamrock  and the jurisprudence that has developed after that interpreted what the phrase the defendant minute but i don't see a thing in caffe a to suggest that the fundamental shamrock rule was being disturbed instead you have fourteen fifty three referring over to fourteen forty six for the procedures and as our first thank case said there are good reasons for at least in the simple case saying that somebody who files a plaintiff shouldn't by the alchemy of rule thirteen become a counterclaim defendant and then suddenly able to remove and defendant i might say instead of the rule thirteen or the rule fourteen third party defendant all the other fancy hyphenated kinds of defendants the the only word i would take issue there with your honor is that shamrock did not hold that only the original defended what shamrock taught us is that there really put the types of defendant they can in the mood or defendants who were brought into the case by service or process and who had not submitted themselves to the fore well i'm going to quibble with you and say that certainly shamrock means that if you have a versus b and b is the defendant then if it's some later time pursuant to say rule fifteen there's an amended complaint that's filed and now you have a versus b plus c pursuant to rule twenty c who comes in is a defendant and if c is then properly served it effects the yes you're right that exactly right but shamrock says the reason for that in fact the reason why a counterclaim defended who was also appointed cannot remove the case is because they were not brought into the case in the first instance by service or process they had purposefully submitted themselves to the jurisdiction and i'd like to tell you something that worries me about your position i understand that there's a slight difference between the situation that we addressed in the first bank case and your situation but just to review this case it starts out when tri state sues the bauers regular old collection case the ballard's then file a counter claim so they become the counter claim plaintiffs tri state is the counter claim defendant under first bank tri state is not entitled to remove under ca but now they feel they take advantage of what's available under rule thirteen age and they add another counter claim defendant home depot there somebody else too but we're not to worry about them under your rule tri state is precluded from removing a bus you're asking us to overrule first bank and you get to remove so you create a blatant inequity between two parties  otherwise exactly similarly situated and i think that's something that you need to defend your honor i don't think there's an inequity and i think we can look all the way back to the show there is they're both counterclaim defendants one of them isn't title to remove the other isn't i would view home depot's position in this case as a defended who was newly added to the case pursuant to a counter claim that was already in existence well that you're playing with labels look they're part of the counter claim there's a thing called counter claim that gets filed in the district court and they are counter claim defendants and the other counter claim defendant is tri state again simplifying a bit and under your rule only a new counter claim defendant can remove  started out as the plaintive and then you become a counter claim defendant you don't get to remove under our first bank rationale i think the important distinction there your honor is that home depot never submitted itself to the jurisdiction of that may be and it may not be that you can't say that the practical effect once they're in obviously the federal rules are very liberal when it comes to joinder of parties in joinder of claims they they  follow a philosophy of throw everything into the hopper and so because of thirteen age because a group of twenty you can come in there they can bring you in soon they can serve process on you know all the rest of that which is obviously not a problem here and so i guess i'm going to take your answer since you don't want to answer the question to say yes there is a distinction  a difference in treatment between tri state and home depot between the original counterclaim defended and a new counter claim defendant and your responses tough luck not exactly right rather i think my response would be that is the result that is dictated by the rationale for the shamrock but it's also a new problem i mean we faced one problem in first bank which is the the problem that you get when the original plaintive suddenly finds themselves rethinking their choice of forum and now this new problem of inequity is there and i haven't even gone into the the rest of the problems of the contortions you have to go through and fourteen forty six i'll tell you my view of this at least at the moment is there's enough rewriting and tweaking that we would have to do to the statutes plural thirty fourteen forty six ca e that it seems to me if your equity arguments are correct this is a job for congress your honor i believe that the statute as written fourteen fifty three makes it clear that any defended may remove a qualifying class action that it would we would have to overrule first bank then under your view because certainly you would agree that tri state is a defended and it would also if i might just add it would give it make a different court there's a different because our court might believe that it is better policy and you know the people that decide that are good about our pa because what first thing said was that a counter claim defendant who was also appointed cannot remove but it by your definition there is still a defendant if you're really going to go all the way with that any defendant means any defended how can they not be a defendant again that's the teaching of chamar it's a defendant who is not a point and i think that is the way this court interpreted that's not what this text it says it doesn't say any defendant who is not a plaintive that that's that's true and certainly th court at that up at that time could have decided that congress in choosing that any defendant language which is clearly broader than the defendant or the defendants in section fourteen forty one that congress decided it that w someone who has not purposely availed themselves of the forum and was brought into the case by service of process because that is the definition that this court has to use for he defended and in concluding that first bank was in fact not defendant so what do you do with the paragraph and first bank the comments the first banks position their would make hash of chapter eighty nine and then it goes on you know what i'm talking about what you just say so we'll have hash no your honor i think as i read the first base decision incorporating the definition from shamrock it's that a defendant who is also a plaint cannot remove but that's not what this part says it says that would make hash of chapter eighty nine because section fourteen fifty three b refers to fourteen forty six unless the word defendant means the same thing and both sections the removal provisions are incoherent correct which the the court said nothing about playing it's there it's not the defendant gets to remove me so i can disagree with you on you know the efficiencies of having you know the giant class action like this in federal court maybe congress will change the law to make that happen just as they did when they added castle but we have statutes here in this court can read defendants consistently across fourteen fifty three fourteen forty six important point one the same way that it did in perspective because key to the court's decision in first date was the finding not that it was a counterclaim defendant that's not the reason why this  decided that fourteen fifty three says any defendant language was not broad enough to cover it this court relied on shamrock and that shamrock decision said that a defendant who is a plaintiff can't win if you know it to let them remove a new defendant joined to the case by service of process that's the teaching of shame shame rock says that the right to remove exists in a defendant who did not submit themselves to the fore that's precisely what you would have here so you could simply read fourteen fifty three consistent with shamrock consistent with this court's ruling and first thing to say that any defendant who is not a plaintiff can remove it certainly is consistent with not only that seventy years worth of the story but also makes sense or said the way that i would think it should be phrased any defendant who was joined by service or process and who did not submit themselves to the jurisdiction that defendant has the right to remove the case ok if you want to save a minute for rebuttal that would probably be thank you something to do now and put them into the federal courts so why shouldn't we put a thumb on the scale toward doing that because it would be rewriting a congressional statute that would be overruling fifty years of precedent and you'd have to reverse first bank but this is a different case from first bank because as mr haskins points out the first point that's made in first bank is that a litigant who files suit in state where judge used to book talks about if you interpret defendant money with other way just make complete cash of the removal statutes and makes a very good point if congress wanted to allow counted defendants to be able to move they could have said that if it wanted third party defendants to be able to move they could have said that no longer cumin is that when they say any defendant they've they've said that except in a more economical way what the any defendant goes to and numerous  recognize this is the fact that under half if let's say there are three original defendants only one of those has to remove that's the end he defended that's what any means they're not oh no realize i remember you know that obviously it gets rid of feel all defendant requirement for ordinary removal and it gets rid of the in state prohibition right one of the point i'd like to make in response to your honor's question is it's imports note that and first bank the seventh circuit said we conclude that palisades collections which is a case from the fourth circuit and this i'm quoting here what's whitely decided and why that's so important how would you say it's correct she collections is exactly like this case and that case you had what you ca counter defendant not original defendant and the poor circuit there said that party does not have a right to remove under the statute and it pointed to fifty years of precedent where courts after shamrock oil to say third party defendants do not have a right to live under the statute those cases were all decided before caf it was passed by congress in two thousand and five what what what policy reason do you think that there could be for congress to have you know to give home depot the power to remove if it was an original to but not is here when it's  are way it is a defendant on the powers multi state class claiming it didn't come into the case fallen terribly it had no role whatsoever in choosing the state f or do you think the policy is behind all of this it's with first thing i think you should just start with the language of the statute and it's clear and it's based on fifty years of precedent where courts after courts of said third party do not have the right to move but but think about it this way and this goes to your question earlier judge wood about what do you include third parties to be called include crossed defendants this case had been pending for a year in state court and there's been a lot of work done in the state court and then at a certain point home depot became a an additional county defendant and then they've attempted to remove it take it away from a judge has been working on a case for over a year if you expand defend ambiguous term that my steam colleague would like this court to adopt as opposed to congress making that change you could conceivably have a case proceeding for four or five years in state court the original plaintiff then decides to bring in a third party defend it and then that third party defend it removes the case or you could have across the senate coming in it could be it becomes a very chaotic situation that may have been what congress was thinking about congress may have just been wanting to adopt the the statute to a language that had been used by the courts for fifty years that had worked for fifty years since shamrock oil so they saw no reason to disturb that and so i think it just takes us back to the point and you've seen every  this court in the first bank which you were sitting on that panel your honor ruled that remind but there are other cases as well since then the ninth circuit ruled that way in the westwood apex case you also have the fourt fifty years and to try to rewrite the statute is going to create chaos so i'm not sure in the end that is the answer to the policy reason why we shouldn't interpret the word defendant differently in different parts of the statute and  particular given fourteen fifty three which is a separate statutory authorization for removal tailor made to decaf why wouldn't you take that more flexible approach since maybe congress doesn't want the state courts handling these multi state class act i think if if congress doesn't want that congress can change the law congress writes the s are they changed in two thousand and five to bring about the class action fairness act but it's something for congress to do and that's why this case should be a simple case for this court because it's really not the role of the court to rewrite the statute if that's going to happen congress does that but you do agree that we would have to take a step beyond first bank since first bank use is a case that is concerned with the original parties you know versus d and here we have  counter claim brought by d versus p and adding the p two so to speak counterclaim defendant to it so that's that's an it and the rationale of shamrock doesn't apply and maybe there's a different rationale that would support extending this rule and i guess your idea is administrative confusion maybe there's something else i'm not sure what two points one is i do appreciate that the  case you had an original plaintiffs that then became the countered claimant the counter kind of defendant but as i pointed out earlier in first bank this court did rely upon the palace aides collections case that is a case on all fours with the factual scenario here and what shamrock oils but general quill is not based upon policy it's based upon statutory interpretation in that case the supreme court went and looked at the judiciary act of seven hundred eighty nine look at the brief period a question of what should we do it's what does the what does the law require because that's what the plain language states and that's how courts have interpret it for over fifty years in the palisades collections case which this court relied upon it talks about for more than fifty years courts applying shamrock oil have consistently refused to grant removal power to third party defendants that's the case that's the situation we have here in other words  on parties who are not the original plaintiffs but who would be able to exercise removal power under the incorrect interpretation that they rejected and then it goes on and cites case after case after case to decade t and this would be the only court that would have taken that position decision was not the majority in that case started its analysis in that case with the announcing the principle that removal statute should be construed narrowly and in fact it said that its decision in that case was consistent with that principle construction the dark ch two points your honor first judge niemeyer correctly predicted what the standard should be and second reached the exact opposite conclusion applying the correct standard the second point your honor is in the jordan case the ninth circuit specifically