chapman versus crane company neither crank those federal defense nor any claims against which it was asserted was dismissed here within the meaning of twenty eight u s c thirteen sixty seven c three in number two diversity jurisdiction existed when this claims remain on the first issue  i don't think there's any dispute that original federal subject matter jurisdiction existed when crinkle removed this case to federal court crinkle removed under twenty eight u s c fourteen forty two a one a federal officer removal statute aren't aren't there cases in particular the supreme court cases the carnegie mellon decision and i believe that this case is different because after carnegie mellon was decided in one thousand nine hundred ninety or ninety one congress enact in thirteen sixty seven now this court has held that  which we said in our briefing that the thirteenth sixty seven cabined the common law analysis that existed under carnegie mellon and gives right so you have to identify if you're a district court you have to identify a specific federal defense was subject to dismissal if so what other relief thirty objection to its being dismissed there was no objection or motion your honor i mean it was it was never dismissed there was  the plaintiffs filed an amended complaint to disclaim the allegations that gave rise to it plaintiff's fall remain motion remit there was never a moment when anything was dismissed but  form over substance i don't think it's form over substance your honor because as i was trying to say before at least if there had been a dismissal motion franco could have asked for some type of some type of supplemental relief and i'll give an example most of the plaintiff's allegations of exposure against crinkle here were were related to mr chapman's expect a time in the nape right so the players effectively say we're not pursuing you for any of that anymore we are greatly weakening our client we had no opportunity to say to the district court  ok what does that mean if you're going to hold this disclaimer means we go back to state court can the plaintiffs seek the same amount of damages from my client when they get back there now that they've disclaimed so i don't think it's harmless error i don't think it's form over substance for that reason  your honour's if i gave turn to the second question isn't lost to be determined by the state court is that i don't think so your honour's although i think we probably would have liked to have gotten the district court's view on of course you would that's why you removed it but i mean you would like the district court's ruling on all yes but i agree with your honor's we can race and stay corner on the diversity issue your honour's as far as the factual predicate for diversity i don't think there's any dispute in the plaintiffs are diverse i don't think there's any dispute crinkle was the last active defendant in the lawsuit now there are two inactive defendants that never showed up or entering appearance the plaintiffs themselves represented to the district court at one point that they believed that these entities were were report was a say one can you present me with evidence that there's full diversity i'm sure we could we didn't before your honor you don't have in this record no you'd have to be there at the get go when the complaint is filed well that's really the question your honor because fact frankly the factual underpinnings for diversity here were never argued in the district court the district court soon but as a factual matter diversity your stiction existed but the district judge held that unless diversity also existed at the time of removal then then she had to remain on the case now we think that's fair and here's what i don't know what statutory authority the district court thought permitted to remain in these circumstances it certainly isn't fourteen forty seven see now the district judges analysis to me was a fourteen forty seven c analysis the district judge looked at the status of the case at the time of a move but everybody agrees federal subject matter jurisdiction existed then under fourteen forty two a want so it wasn't fourteen forty seven c and thirteen sixty seven which the district court didn't cite in this diversity issue that only permits a remained of claims arising within the supplemental jurisdiction exclusively of the federal courts so wasn't thirteen sixty seven c even complaint is that there are additional defendants that i believe the complaint specifically disclaims that there is that versity so how what mechanism by what mechanism so that the district court have to term and diversity there was no amendment  diverse we we noted our citizenship ranko citizenship we pointed out that the plaintiffs themselves had said it was the last defendant and that these other parties were also diverse so in the face of the point i would make i would refer the board to the opinion that we said in our briefing the jefferson decision from the fifth circuit which i don't see i don't know if you could get a case that on the facts is closer to our case i know it's an unpublished decision but i think the analysis and given that all the federal issues are in fact the sole federal issue that government contractor defense have been eliminated by plaintiffs amended complaint official dismissal was not required that would make no sense given the statutory scheme  cited several bases and under thirteen sixty seven including that this there are many claims involved in complex issues of state law even by crain's own admission in their summary judgment motion they asserted not the government contractor are two separate issues one is when they could've raised this issue at all and the other is when the court should have looked to determine whether complete evidence of the existed we still assert and that the court was correct in saying that the time of filing in the time removal is the appropriate pla entirety of the action for any particular basis redress the action but that's the exception to the rule and the general has to be they look to the state of things at the time the action was originally brought here actually considered whether it had made any determinations frankly  and the court also determined that the supreme court which has a specialized specialist docket expertise and in those interest in adjudicating these claims i think it's also fairly clear that crank up brought this case to federal court in the first place even though it decision was appropriate just record also balance other factors including that the plaintiff was terminally ill at the time there was an obvious advantage to him being able to use the expedited docket in new york state court and try to live to see his day in court and there arguments are coming at this the wrong way they argue a lot of things from the perspective of could the court retain this action the question is not that it's whether there was an abuse of discretion to decline to exercise the mental jurisdiction i think subject matter jurisdiction existed at the time and we just assert and were correct in doing so that it was merely supplemental jurisdiction since nothing but state law claims remained at that time and again the color held decision carnegie mellon versus and the cases then remit for adjudication state court crane seems to hinge its argument on the fact that it still has the government contractor defense which i confess i don't really see how that's possible defense requires a claim to defen to defend against the government contractor defense requires navy allegations to defend against and there are in this case they say that they didn't have an adequate opportunity to brief these issues that's not accurate either they had the motion  sister few quick points if i may the primary two issues we present here are not discretionary issues with the district court i should have mentioned i forgot but will rely on our briefing for the question i hope the court doesn't reach the question of whether the has to exist at the time of removal if the case is removed on diversity grounds and that's our problem here in this case was moved on diversity grounds so i know that the plaintiffs cite a just a chorus line of decision standing for that proposition but they're neither here nor there as far as i'm concerned and the jefferson his and in the second point your honour's on this is factual dispute over the existence of diversity i would refer the courts s p a seventeen this is a quote from the district judge on  the district judge was asking plaintiff's counsel a question and said what about diversity now there is diversity is that a proper basis for maintaining jurisdiction and the response was no but the response wasn't as factual matter judge we disagree with you so i really don't think there was a factual dispute at the district court level if the court thinks there is now i would send and i would decide the legal question whether the district work of the law right on this issue and send a factual dispute that that's all i have your