good afternoon your honour's may place according to your columns monger tolson olsen on behalf of the helen mattel incorporated both of the bases of jurisdiction asserted by the defendants here both diversity in federal question jurisdiction fail and therefore the case should be remanded to the los angeles superior court like to address the diversity jurisdiction first the right to alternative problems either of which is sufficient to warrant a rejection of diversity jurisdiction first is the fact that m c i has the complaint is now understood is an indispensable party to the claims now the district court did not actually dispute that proposition instead what the court concluded is that because the interest of m g a did not appear on the face of the complaint that therefore it could not be deemed to be an indispensable party the defendants do not defend that reasoning which is directly contrary to the dictate a case where the indispensability was only discovered after the pleadings and you obviously have to assess it in light of the understanding of the claims the district court didn't go ahead and do the fourth factor analysis and therefore this court reviews that  fact what the court did in to cater that it noted that it could remember the matter but instead went and analyzed the factors itself two of those factors are not in dispute one is that nothing was offered in order to lessen the degree of prejudice and then the fact that there is an alternative form where everyone can be joined in these issues can be resolved that factor as the decatur first after the unnecessary hiring there's no dispute that they were necessary party once it's understood that rights to bratz are an issue that was the issue in dispute but it's it's always been i think agreed by all parties that at least they are a necessary party once rights to branson are in issue the question that jurisdiction was raised and is preserved which is the conversion claim is pleated as an ownership claim and the law is very clear in this circuit and elsewhere that an issue of who owns a copyright is not an issue that is governed by could have a conversion of tangible property but how do you have a conversion of an idea well that was one issue that was raised of course that issue wouldn't help the defendants because if there's only a a conversion of an idea if it's found that that state law conversion would only reach actual physical property then of course this isn't going to be a copyright claim it would mean that the conversion was the wrong claim to have asserted why the federal  but really we were and so when they were using it they were using something i e our intellectual property rights up along the us that's a copyright claim as i understand our case law if you have both in a cost of action also an ownership claim and  t infringement claims that there is creditors but the it has to be that it is ownership and copying and i don't think and i don't mean to sound like i'm parsing words but there are uses other than copying fight producing the facts don't know i think it's quite the opposite because we're talking about complete preemption as a narrow exception to the face of the complaint rule for federal questions and i think the caterpillar versus williams case critical here because in caterpillar the defendant in removing the case showed that look on the facts as you've alleged them you have a federal claim you are governed by this collective bargaining agreement   intellectual property and frankly i don't know what else a comedian other than mine did something with it on that they weren't supposed to do for his assignment of it to n g a and bryant is the defendant in this claim his assignment of it and receiving consideration for that is a use that is not enough that south a copying this complaint does not take the further step in the conversion claims of asserting not very useful because of the sense that i mean clearly there was a first case that resolved the ownership issue again the disloyal partner and it was a judgment against the disloyal partner there was a monetary recovery all of that student state court then there was a second action but i think the briarpatch first suit the one that's stayed in state court is the similar use when you have rights that you have taken and it's not i want to correct one thing it's not just the month it's that his contract said that anything that you create during this time period there's a contractual right in mattel's so it's not just limited to the one month of overlap it would be that if he developed this during the earlier time period so there's a larger timeframe that's at issue but his assigning is getting a revenue stream from that it doesn't necessarily and again because we're in a complete preemption context i don't think we read the complaint liberally to read anything that might lead to federal jurisdiction has to be quite the opposite we are masters of the complaint and if we've chosen not to assert the federal claim but to resolve the ownership issue first and then decide what if any additional claims to proceed with that is a choice we're entitled to make  very cautiously we knew he was disloyal in this one respect we want to see how far it goes with the copyright law but certainly we believe his disloyalty can extend into that area that's now quite in dispute between the parties at this point but that i think the appropriate caution was to stay with the claims that we started with those claims belong in state court at the time we're prepared to assert the further claims  terms of ownership they have raised this issue that on the facts there has been inquiry into whether or not he may have a copy of project but as i've pointed out in the reply brief that and here i think it where we're really falling within the caterpillar versus williams case that you have chosen to say we haven't chose to sue on that theory but it it certainly is relevant to dating the time period of when he might have created this which is relevant to the contractual ownership claim the other thing i would point out in terms of the copyright  preemption analysis is the courts have been very clear and most of these complete preemption cases that they have relied upon that if there's the extra element of contract or there's the extra element of breach of fiduciary duty or just loyalty that that takes it outside then the remedies are not equivalent and that i think is exactly the conversion claim just to go back one once more to judge newton's question we have a footnote in our reply brief where we address this issue of the doubt about whether conversion can extend to rights in intellectual property of this sort and we indicated that to the extent that they don't that just means it has to be remanded for that reason because they then picked only this claim to assert federal question it's clear that those favor a finding of indispensability and that is whether or not there is a substantial a possibility of prejudice and there clearly is here if you are the  writes and the upstream holder who gave you those rights is found not to in fact have them to say that that's prejudicial lives is something of an understatement that catherine wouldn't mind you if you were in it it would not bind n g a directly but the inquiry into prejudice does not look at the consequences it looks at the practical consequences that's in that the commentary to rule nineteen and certainly as a practical consequence that is going to threaten and i case no because again the ownership issue alone is sufficient to show prejudice to them if they are the downstream owner of the ass and he and the ownership issue is governed by state law there's no complete preemption there otherwise what is your damages going to be in school asked again or prizes the plaintiffs affirmatively asserted the copyright claim and so there you were the court had to look for any possibility that a his contract and that value alone the any measure of damages is the fact that the damages are alleged here in general terms we're kind of in the converse with you ation of scholastic we don't look for any damages that might fit into copyright we look for any whether there's any damages that might not fit into copyright because the face of the complaint doesn't go any further than that and it is conceivable that damages can be awarded here based on values received by him without going the further s sixty seven at all as long as you stay within those parameters right miley getting into things i think you have to get into thirteen sixty seven because now the whole area of supplemental jurisdiction which is but the but the jurisdictional requirements of thirteen thirty two and the reference to the complete diversity rules on the face of thirteen sixty seven congress accepted the supreme court's invitation in finley to codified this area the law and not make it judge me so now you have thirty sixty seven a which is the general grant of supplemental jurisdiction phrased in statutory terms which we've said does preserve some of the preexisting limitations like the limitation on anything indispensable party but then there's an additional list of limitations in thirteen sixty seven b and you may not invoke supplemental jurisdiction under thirty to sixty seven a which is now the sole basis the alabama decision makes clear for exercising additional jurisdiction there's no more pendant every jurisdiction it now is supplemental jurisdiction under thirteen sixty seven a or it is nothing and therefore the limitations of thirteen sixty seven be limit any exercises supplemental jurisdiction because they are limitations on her to sixty seven b are on the face of the statute and will also apply so even if it is authorized because thirteen sixty seven a is red to include those authorizations you then have to get into the issue of whether thirteen sixty seven be limits that grant so even if they are going into a you're still going to get into the limitations of b because on its face the language of the statute does act as a limit on that i see that i have very little time left for rebuttal i will  i'd like to start with the federal question issue is i agree with the court that it is the most straightforward way of preserving this appeal and i hope in so doing i can also respond to judge noonan's question which is why are they so eager to avoid being in federal court the federal courts have developed an intricate body of law to strike the balance in copyright cases between the powerful monopoly rights granted to copyright owners and the rights of others like carter bryant to compete and to come up with new ideas for example there's the idea expressions i caught of me that says ideas are not only only expression of those ideas can be protected or this court's decision case that talks about the difficult analytical test that must be gone through to decide whether there is substantial similarity that's the money of law that applies in copyright cases also copyright cases decide when is something  work and how do you apportion jam it is in copyright cases if there were a work that's an issue may not be fully infringing but just some portion of it and what about work for hire when you're dealing with an of who owns it they wouldn't it wouldn't just be that in use it would also be there couldn't be any claim for damages or any claim for the distribution like to be able to be damages relating to his money he paid him during the time period when he was really when he was know evidence that he mr bryant could not have independently created breath then you come right back here perhaps but it can't it doesn't seem to be a very efficient thing to do it's better to be here in federal court with the case for long mr bryan already ha it relevant to our positions to whether there's federal question jurisdiction i think though it clarifies and shows it's the icing on the cake let's put it this way there are still in all the cases cited that strong elastic  the different cases cited in the briefs i submit that the facts of this case are far more convincing and compelling case for copyright infringement the nanny of those cases just based on the distribution point and i point out in scholastic at  ninety eight of the decision the court specifically distinguishes the scholastic decision where again they are the point the defendant said that they weren't going to use it while they love the ownership issue was determined and the best strong case were dress is this this red herring further of their idea that this is all this is this is only about ownership only in very cases that they cite makes very clear that this is not a case only about ownership it's about use and it's about copyright case test you own it and was there copying but where does here it goes beyond that to say to get into the exclusive rights and one of six the rights to make derivative works the rights of reproduction the rights of distribution the rights of display all of which are implicated in their complaint that transforms the nature of their complaint completely and it prevents them from start stepping the federal law that says that copyright laws are what supposed to decide these issues not state law cases i think that's the other point is that the mattel keeps saying well that they're nastier of their complaints well they may be even nastier of their complaints but there's a higher authority and that's federal law the law is clear you cannot it's not your choice to make to choose to couch what is otherwise a copyright reading the overall opinion because she felt it wasn't going to make a difference because she did misapprehended for stowing didn't realize that she could look at post removal evidence to help clarify her view as to the nature of the complaint she didn't feel the need to go into those cases but it would be a very odd result to have not for that reason to not consider those claims which are manifestly created and again i refer to the court to the delmar tara case and i also refer to the court  in particular judge briars decision in the frozen case which has a very nice discussion of the complete preemption doctrine and it discusses preemption conversion and also discusses prevention of injustice and richmond result that if the claims are stacked federal copyright claims you would have in a legal result you would have state court judges not that there's anything wrong with being the state courts are that you have state court judge is deciding  should be addressed but in any case what we're dealing with this is you know is this case a federal court case or is it a state court case for all the reasons we've discussed we believe that it's clearly a striking case correct the correct i mean i think it's important to really think about nineteen though because nineteen the really wasn't designed to deal with the situation that we have here and in fact there's there's no shortage of irony  know it was about graft on e r fifty i believe is the contract between mr bryan and ga rafters mention on the front page of the contract that they said was the big thing that they saw that made them decide to bring they specifically struck a provision in the stipulation of intervention that said that we should be allowed in the case and have this the rights and obligations of any party they struck back were in the case of mis quasi monitoring role where they d no claims against us we've asserted no claims against them and the reason is again going back to judge newman's initial plea why didn't they sue and she a because any claim against n g a thirteen sixty seven because i don't see how it's relevant at all to this appeal thirteen sixty seven is just is not intended to deal with the situation here it's certainly hasn't changed the existing law of the land which is that the post removal intervention of a non to burst non indispensable party should not destroy diversity certainly nothing in exxon mobil cio change that rule or anything to that effect now we're dealing with indispensability i agree this is a copyright case as we i think now know we did you you know you would think that that we would be part of that case you're still trying to fight the idea that this is in fact a copyright case but i ask the court to consider that there is no rigid rule for determining indispensability rather than the principles court is very helpful because they are in criswell the person claim claiming that indispensability could have named the party that it said was indispensable and you know should cause all sorts of big changes in the lawsuit as a result of that person being asked but that party in criswell like mattel here despite knowing about them despite the fact they were available there was no bar to suing in that case the airline pilots association mr bryant lives in springfield missouri it's not a publicly traded company he doesn't own the factories in hong kong and the removal rules are expressed fully designed to protect foreign citizens like mr bryant and up until march two thousand and five he was not getting that protection and he wasn't getting it because of humoring after hearing after hearing the tell would say whatever it needed to say stay out of federal court and they're still doing it right now the first thing that they said was that they weren't sure if this case was  in court rooms by what they did but they produced scores of broad strongs and discovery that they had before this lawsuit was ever filed that they were propounding hundreds of request about his work on bret's not just during the five we go over laughing period but right up until today and they were asking him questions that depositions which were loaded with copyright phrases like substantial similarity to its conduct matelot show that this case should have stayed in federal court the first time and now all it can do is clean by its fingertips to the one theory that could get it out of federal court which is that m g m is indispensable but as you can see from this and all these argument it would be no bar for mr bryant to remove this case again if it went back to state court because it is clear that what is that state is the rights to  can stand in the shoes of mr bryant and then m t a isn't into spencer bill anymore i would suggest to you that mattel could have chosen to just do carter bryant they could have treated this is what they purported this lawsuit to be originally they did happened to them was a very small number of drawings were turned into a three dimensional object and the three dimensional objects sold all over the world now and it's the copying of that it's the use of that it's the rights to the fact that it's taken this wa you just just a few quick points your honor first on the waiver issue the district court in footnote eleven of its ruling specifically held them to the waiver with respect to the notice of removal on federal questions limited to the conversion client and and exercised her discretion not to consider the other claims there's a second waiver though because the read brief does not address the fact that the district court did this and explain why it was wrong so there is a second waiver in that one of the grounds on which the district court rested was not raised in the in the red brief as that leaves just the conversion claim and i would point the court to footnote twelve of the reply which raises this alternative issue whether or not the wrong claim was picked in this regard and although we'd have conceded for purposes of diversity jurisdiction and as we've indicated in our brief that rights to bratz are in controversy we have not taken a specific position as to whether it's this claim or that claim and indeed as indicated in the footnote have preserved the argument that they may have picked the wrong claim in that regard we have never taken the on the issue of copying again the scholastic case addresses the issue in the context where the plank is trying to assert the federal claim and there the fact that it was just on a ship and there was not even any basis factually to allege copying the court held that you would need to be able to say something about copying in order to go further that's not the context here because we're dealing with complete preemption and their own cases like the fruity case and like the briar patch case indicate that we're the gravamen of the claim sounds in contract or in breach of fiduciary duty which is certainly the case here that provides the extra element it's certainly breach of you surely duty goes through all i mean that's that's the greening of this case he was a disloyal employee and that provides the extra element briarpatch has some play page three o seven when it talks specifically about the claims against discussion that no matter how these claims are presented they will not be preempted and that's based on this extra element analysis so when we're in th so under that case even if there isn't an allegation that beyond ownership that they didn't just put it in a drawer the mere fact that there is an allegation that something was done with it isn't enough in a complete preemption cont to say that you can have this claim forced upon you when in fact the gravamen of your claim raises these extra elements and therefore brings you outside of the complete preemption thank you very much tha