he had with amazon or rising out of his contractual relationship it greed twice in the contract and he agreed a rd time by not exercising his right during a fourteen day buyer's remorse period to change his mind he's now here before this court asking you to allow him to update his contractual obligation to arbitrate in a neutral forum it in he asks you to use that they're all exception of section one of the federal arbitration act to allow him to do that correct your honor i would like to see if we can streamline things on that subject is maybe with an unusual understanding of kind of what actual material might be by way of part of the company's business all folks market is also a part that's related to these drivers would you hope we're in system would your adversary want to do discovery on that point it your honor i would argue that discovery is inappropriate under the test that's one of the big important things of the company sort of three hundred and sixty service my words not yours sure through through various rd parties absolutely your are right for the delivery part and that the goods that are ordered and deliver it's fair to say that they don't all come from the state in which the deliveries happening quite differently the goods come from other states than the place in which they're delivered some do and some don't and the happy to explain why i don't think that's relevant but absolutely so better disputed around this and discovering me some of them others may not that's probably true of most matters and i'm curious where you sort of see the threshold analysis of illegal determination coming in this case important by our prior decision and i absolutely absolutely thank you judge maybe it two respects number one i think that to the extent there were any discovery aided we should look to what judge porter said in his concurrence in seeing which is if there is another way to the accident here there is all roads lead to arbitration so instead of going on what it seeing has been an eighteen month discovery odyssey that is just now moving from documents to deposition here the answer is clear because state law would require arbitration respectfully your honor joe and district courts in this circuit and elsewhere have reached the conclusion that they need not go through that academic exercise when it is clear that the alternative will require compelling arbitration anyway so here what we know is that pursuant to the new jersey supreme court's decision in a rapid net where the f a a section one exception applies there for you jersey is a default rule for every arbitration contract entered into on or after january one of two thousand and three eighteen month odyssey like seeing then what moses h code tells us and what washington in new jersey law tell us is that that would destroy the efficiencies of arbitration the whole point is to take the parties pursuant to their agreement to arbitration as quickly as possible so to go through the academic exercise of eighteen months of discovery to conclude either the section one exemption is inapplicable and therefore discovery must be compelled at the f a a or it applies and you just lemonade the need for discovery we have or we have some concessions on kind of what amazon does and what the plaintiffs do as a class from the pleadings and do the analysis figure have section one applies or doesn't if it doesn't off to off to state law arbitration we had we examined could we try not is not a viable approach to avoid what you've been describing this eighteen month as odyssey of the discovery that's been taking very much your honor and i think it goes to church made his question which is under saying it is the burden of the plaintiffs to put forward facts in order to open the door to discovery facts to put in dispute whether the section one exception is at issue whether the class of workers is defined by it's been in interstate commerce here or this is actually the case of sort of seeing scenario one which is the papers themselves make clear that the nd one exception is not apply and the plaintiff did not eat his burden to put forth any facts to put that in dispute his complaint simply alleges that he was given packages to the river within a two hour block that suggests to me that the job is not defined by interstate commerce local delivery within a metropolitan area using your feet a bicycle a personal vehicle or public transportation within a two hour block that is not a class of workers defined by their engagement in interstate commerce in the winter  individuals they contract on an individual basis using an app to make local deliveries for amazon whether they be packages from the air or for or whether they be fresh food from your local whole foods as or as thank you judge forty any other questions  do i do for mr schwartz well as you know i agree with you that if there is another path to arbitration through state law or whatever we should pursue that path but in this sort of gets back to judge sort of earlier question in this case because that twice of law provision is drafted so specifically why are we compelled to follow that through rather than go on and on you know  possible which were you to order discovery and go down that academic rabbit hole it's totally inconsistent with the purpose of arbitration the parties will not have got the benefit of their parking here is the reason that you can do it is the parties have said that the f is the enforcement of the arbitration clause the plaintiff has said i fall within section one therefore the f a a doesn't cover that essentially becomes an academic question it lest you decide it on the papers without discovery and which i suggest you could do but if instead you were to go to seeing path to which is you were to find the plaintiff bet his burden to put forth specific facts which he did not and therefore discovery it's a will why in the world would we do that when we can just of the arbitration agreement under state law that this court said in palko that's not true so that argument is absolutely precluded so i'm not on the choice of body issue you're saying that as an analytical matter we could just go ahead and assume section one apply and then default to a law that's correct your honor and district courts in this circuit including two case in the eastern district and then you have done exactly that because it's the most efficient way to proceed so here if you were to move to state law again all roads lead to arbitration you either find as the white hawk a court that you can strike the quote unquote offending words from the choice of law was leaving washington a lot to cover or alternatively the new jersey supreme court's decision to wrap it tells you exactly what to do which is that even where the party set the f a a and even where section want to apply in the default rule of new jersey law applies which is every arbitration agreement is governed by that you jersey arbitration act which has the time thank you that's porter now ok counsel have you back on the bottle thank you thank you your honor welcome arbitration no matter what we don't agree that all roads here lead to arbitration what amazon is asking for is for the court to forego discovery which the district court prudently ordered so that we can flesh out the facts exist or you have enough based on his those sort of representations or in sessions that would forego the need for discovery what more do you need well i think and i hate to put myself in the in the shoes of my adversary but i think in fairness he would suggest that there are more facts that would need to be fleshed out that those stipulations or concessions alone that amazon's a retailer providing delivery of go goods ordered and that they may originate from other states i'm sure he would argue is not enough to forego discovery i think maybe it's enough to forego discovery but in the interest of fairness and in the interest of getting at the truth which is what we're we're trying to do in all litigation i would suggest we need a little bit more than that before you even say there's a legal decision that can be made here what well i think we need to talk about what that stream of interstate commerce is i think  defense has argued that the flex drivers are not necessarily going to be considered last mile drivers they may be we need to know the facts on that i think we need to have a sense of how often they're crossing state lines versus i'm i'm certainly not going to argue myself out of it if you think there's enough but not on the record i want you to tell me what you lack here that was present in those cases that presumably you and your client would say we're currently decided at least on the section one issue your honor other than information about how often the interstate travel is happening in the origination of the the goods nothing it last question yeah i think the district court said that the said mr court said you know once we determine section one after that we may have to then turn to state law and see what state law says about th that i know the district court didn't tell us why we shouldn't send it back to the district court to do it i don't have an issue with that your honor to send it back to the district court to deal with the state law issue that it that it declined to address in the st place i have no problem with that i think that's a perfectly reasonable response you know on the parties can argue applicability of state law and enforceability under state law standards i don't have an issue with that  so here you know again from our view you know defense said that we're before this court the plaintiff has before this court asking to be removed we're not before this court we didn't bring this appeal we came to the district court asking to litigate this case on the merits the district court said i don't know yet i want to follow saying i want to do some discovery and after that then i want to assess the state law issues and then we'll make a decision plaintiff is perfectly fine with that we will argue to the state to the district court if and when the time comes that even under a rock we don't believe that pursuant to at least garfinkel or in any number of other cases that this particular agreement is in forcible and to the united states district court judge for us to argue about the at what's what choice of law applies and and how it governs whether or not there's an arbitration requirement if i understand you correctly you know you're i think we have to have the section one analysis but if the court is suggesting that you know we're just going to jump to whether it's enforceable under state law i would be ok with a directive to the district court to do both analysis do both sets of analysis the section one analysis prior to discovery based on what we talked about today and then the analysis of state law in force ability and choice of law all of the state law issues to the to the district court to address in the st instance whether there is a state law passed to arbitration before dealing with the section one issue this doesn't constitute a waiver of the right to discuss a section one issue depending on the district court's decision yeah i would be fine with with doing it in that order in that order ok and if that's the case  want to the district courts benefit if you're willing to have a state law decision decided st and the ruling of the state court is arbitrary then you live with that we can come back and say but you didn't decide if i like that's her ruling if she says no arbitration under state law you're you're prepared to kind of modify the order of operations ok look what about under the f a a get give us a rule right that's what i would propose we do if they're saying no state law then we have to talk about f a a if she says state law regardless of what now all right mr schwartz let's just jump into feel like it's the good old days right let's see if we can work with the parties and come to some something that maybe that you can live with what do you think about  concession by your adversary not a concession but in a willingness that we send this back to allow the district were to just side the state last question st and if it's if then turn to the st section one if they just depending on the anything else you wanted to add absolutely your honor i do have commentary on the discovery issues and my colleagues responses but i don't think it's necessary at this time i concur with the resolution that my adversary has suggested to the court a chief judge will send to decide in the st instance when there arbitration should be compelled under state law and i just want to make sure we're not leaving judges will see some guidance that if we moved she has to move to section one for some  the plaintiff has not put forth sufficient facts to put it issue whether the job is the class of workers is defined by their interaction in interstate commerce and therefore there should be no discovery to decide that we see that what i'm saying is i don't want she's already decided from her point of view she doesn't have enough facts understood your honor they're not going to i want to make sure we're not giving her a mixed message she's already decided it and on that point i think we're at title to answer is actually demonstrate the horror here which is she wants to take discovery about what the stream of commerce is quote unquote and if you look at page died of mr harper's brief you could see that to how the goods might have flo through amazon warehouses throughout the country respectfully your honor that is quite a rabbit hole that is totally irrelevant if the section one exception was about where the product is now just disparate pointed out while as the th circuit defined by their engagement in interstate commerce that's not the case here and at eighteen months worth of discovery about where different packages might have come from it's not going to answer that question any better than it's the answer today which is that the pla put forward no facts except that he and others might occasionally in a metropolitan area cross state lines that doesn't make their job defined by commerce in the way that railroaders would have been or c workers would have been and so discovery would be it nothing for the counsel thank you for the very important of oral arguments that i will we will take this not are under advisement and we thank you for the excellent review no arguments so thanks