who decides question concerns the perceived rule out arbitration mechanisms available to the carson's and accordingly the court concludes that whether classified arbitration is permitted in the underlying arbitration agreement is a procedure all matter to be termed by the arbitrary so the trial court says this is all just merely procedural questions and the whole idea about we're not there should be class arbitration is merely a question of procedure that is exactly the opposite specifically says the notion that class arbitration is merely a question about a procedural mode just roll and that's the majority is still nielson rejecting an argument by the dissent and still mills who said this is just merely a question about procedural and this court in central west virginia picked up on this notion and talked about stealth noodles and made the following observations the class arbitration did not fall within the house some category o and this is again reaching back still nilson reeks fundamental changes in the arbitration and because and so when you look at these cases and you realize that what the trial court said was because it's procedure and you can when you read all their opinions they're very frustrated by the fact that it sounds like they're very frustrated by fact and nobody's getting the issue to them because i say things the only reason we can't research issues because you guys mistrust misread basil and sent it to the arbitrator but you're correct and still they said we can't reach to show we don't need to reach issue because the parties in the supplemental agreement sent that issue to the arbitrator but clearly there is no u s supreme court decision specifically on the basil cases no no no no no no we didn't decide the issue and i think when i read this post basil supreme court cases they're very pretty clear about silence will never get you there a silent agreement as a matter of  a law cannot get you to class arbitration because it has to be something in the agreement itself because you have to presumptions working here and the presumption is if it's arbi presumption is for the court unless the parties agree otherwise clearly and unmistakably that's the presumption is operating in the background and the supreme court say if it's surely siva then you can't over couple years of that first somewhere along the lines they moved to amend their complaint to make class allegations in their complaint their case did not start as a class case it started as an individual case they moved to amend to add class allegations because a very finite class there classic arbiter ability question and they asked the court to decide it in the court rejected trial court didn't rule on it because the rule strictly a waiver they argue is an additional sustaining ground on appeal to the court heels and court of appeals rejected it on merit and then sent it back down along the line there's a serious question about jurisdiction and that's this this is a state court action that was commenced in state court where pulte bill webb the defendants plaintiffs here but the defendants there moved for arbitration agreement which mr weiner tells you is a standard arbitration agreement i would take issue with that i would ask you to look very closely at the arbitration agreement this case because it's a bifurcated arbitration agreement it has an arbitration agreement that's a pretty close in arbitration agreement which talks of the parties rights before they actually go buy a home then there's a post closing arbitration agreement which is far more broad and takes out some language in the pre arbitration agreement it's a very broad and tailored arbitration agreement that is found  all of the plaintiffs all the homeowners this is a sun city project where there was over five thousand homes so if you bought a house directly from pulte and you qualify as one of the people who can live there over fifty five you bought a house there is a contract everybody signs of sale that has a bifurcated arbitration provision so that arbitration for provision was part and parcel of what happened in the state court there was there was a parallel case called grazia that were going along judge baxley had all these cases together and there was a motion made to send the call some cases the calls a lot of cases which had been pled your honor as a class action move to send them to arbitration we resisted it and you might ask why now you're sitting up here arguing for an arbitration he resisted these are plaintiffs that by definition by deed by record he'd have to be at a minimum fifty five years old to even live at sun city many people are much older the underlying grazia case was well along the way and there was every indication if judge baxley found that there was waiver which he did that the cross in case in the garage case we merge and we'd be way down the road we're not we're here the court of appeals in south carolina ruled under the arbitration agreement that was drafted by pulte that these cases were to go to arbitration in state court now by state court and that's important because the arbitration agreement that you're considering today specifically references argued to the court of appeals as a class and i've got to research this and i think this is this is unscientific but one of the first time in the history of american jurisprudence pulte is now seeking to stop the very arbitration that it fought for five years in state court to have held this there has been no change the case was brought as a class in state court it is still a class as it goes forward to american arbitration association there's a four pronged four step process we've gone through steps one and two one is the clause construction and two is the clause construction portion that's part and parcel of the record before you the clause construction ward by the arbitrator is in there and i would ask that you all take a look at that because he goes through in analyzes the manner by which we got there there is no question here by the appellant that this is the question of or is is this matter or particle and again it's the matter that they asked for so how do we get to federal court we've gone through state court we've gone to the court of appeals the court of appeals has ruled arbitration we go to arbitration we have a number of hearings all of a sudden appears of pleading in federal district court called the petition under rule under section four of the federal arbitration act for basically an advisory opinion from the district court that what's going on in arbitration is contrary to the federal arbitration act federal law the supreme court and anything else the wall because we pulled the never asked for this well a couple things i'd like to say about that if you look at the federal arbitration act and then you match it up with the cases that pulte has cited to this court they don't match because the action that was brought in the district court was under section four of the federal arbitration act section four of the federal arbitration act if you look is very specific it looks to people who are grieved when people will not arbitrate that's not the case here we're arbitrating we want to continue to arbitrate we believe every we every right to arbitrate with one except from the supreme court on down the cases that come to court such as yourselves under section ten of the federal arbitration act when something has gone beyond what is allowable under that act we are not even  yet we have as you know question whether or not there's jurisdiction here and we did judge block as well he found that there was but you seem to be making a different argument here today about section or where jurisdictional issue was premised on lack of diversity jurisdiction in well actually your honor we one of the things we argued very clearly is the federal arbitration act does not create an independent cause of action and that there's no dispute about it and it and there's a number of reasons why one of which is again it goes back to section four and you go and read it very specifically section four contemplates anything has to have you have to have all the underlying pieces of jurisdiction which don't exist here and you have to be aggrieved that there is not an arbitration and that's we believe jurisdictional so you go beyond that look at section ten which is a post arbitration review that's a whole separate matter now i did here my learned colleague reference for circuit and what the fourth circuit has done and you see what judge blot did is he went back he analyze what was before him he reached this on the merits and he said based on my reading about isil and then one of an unpublished decision but he cited it that's why it's in our brief this court has gone and said look one of the things you look to is is there an arbitration agreement if there's an arbitration agreement and people arbitrating off you go on i would i would quote there's a few of them but docs are vs sorts which is also cited both briefs what this court has said is a court should intervene only when there is a question regarding whether the parties should be arbitrating at all there's no question about that then you might want to get to the next question if you think they survive through the federal immigration act what about is this a matter initially a matter of expectation and consent is it a matter of privilege look how we got here look at all of the things that have happened along the way and never ever and toured stage two of the arbitration proceedings was there ever a question about the arbitration proceeding being proper in its form and that is all of us just being able to plead deplete at the arbitration level a class action has not been certified as that was sort of an interesting lay the parallel case to action in south carolina in a single family house case because the right to cure action in the court said of course you completed we believe here the same thing we complete it we have flipped played it and we have consistently let it so going back and saying that this broader is much part of the simple language it refers to all causes of action it does not limit itself does not limit itself to the sale of the house and it references both south carolina law and the south carolina arbitration act so that brings us back to sort of the beginning of all how the thing that you do akin to classified are very well here's the answer that this of course is a matter purely in the first instance of contract and you're you're as a court if you get the merits of this go back and look at what the contract what was considered in the contract was agreed to by the parties and here there's a difference between the first over trade agreement the second the second is much more inclusive the activity and actions that go forward from then along the way pulte has never ever ever said you can't pursue this claim like you're pursuing it and arbitration they've said we want it arbitrated the manner in which you're pursuing it if you look at documentary thirty two exhibit four they say every claim that is pled in the state court calls and case is something that is subject arbitration class was pled and so were of the federal operation act in federal district court and say we want to put a halt to it i just believe your honor as you look at the record before you pulte is never ever ever as a matter of contract and contract right and  disappointed party that contract who drafted it said that this has gone beyond the scope of our contract ever with that so that you know that they've never said that these proceedings are going beyond the scope of our agreement just the opposite they said we want these right to rely on that and so sack up lies the south to arbitration act applies and the class that we pled survives again i would and i know you can look at this at two levels but how we get from there to this court you have to go jump through a lot of procedural hoops and jurisdictional hoops to get there and we don't think they make it we don't think they make it we argue that that they don't because of what how they've done it if they simply just follow the pleading that said ok under the f a a let's go section four i don't believe that gives the court enough once they've gone and contractually bound themself to the south kind of a before judge baugh yes or not wants but twice and he ruled i've got jurisdiction he didn't give a written opinion if you go look at the record he just simply settling in the record simply he says if you look at his written order he says i just when we've gone before him that we don't believe you have jurisdiction and if you look again at the record with the transcripts in there the second time i went back before him we continue to argue that we continue argue that we've courses you know can raise that any time but we're not trying to surprise anybody here we've we've never that that there's been any jurisdiction in this case and still continue to believe that there's not so here here we are if you get past that jurisdictional question the question what to pull to contract for what are their reasonable expectations of a contract now we're going to say well we didn't really expect that is well expected all of it and they asked for all of it and they spent an enormous amount of time and money pursuing it to the detriment of our once you get the question of arbitration over to ability and you asked for it that's what you get what happens down the road happens down the road and here they asked for it in the form that it's gone we didn't change anything we didn't change a thing in terms of the form of this case the only thing that changed was the venue in which it proceeded because he asked we did again it was for reasons of time more than anything but now were there but now were there so i would ask this court in the last few seconds that i have to go and take a look at what happened procedurally does the federal arbitration act and specifically section fo depends the answer is as between who sits at this table on that table yes the question is how though did this case get there and what case is it that has gone up in terms of diversity if this isn't a regional pleading it's an original pleading then they've asked for an advisory opinion they don't need jurisdictional minimums if this is a pleading that comes from the state court case there is no diversity if you just go look at the caption of this the court case because  individual are named in that pleading so it's not completely clear and cafe is not that we may hear about that in a bottle and i'll sit down half is not implicated because just so you know there's another case coming right behind us we're headed for you all again because there was an attempt to move the remove the calls and case in view for state court to judge blot and he dismissed that as an improper removal of a case that doesn't exist because it's an arbitration and we're headed for you on that one too your honor look at the federal arbitration act and you look at what happened this contract and what this contract says this is a matter of state court of state leading a state proceeding state law that was proved pursued by pulte in state court they want the court of appeals where in arbitration all we've done is plead class has i'm a certified and i want this court in the made a comment about this just that those who are age fifty five or older may be living on borrowed time i hope that was like no sir and i i i actually meet that requirement as  talk about how we got here i'll tell you how we got here how hard this whole dirty road to discuss started they brought a state court action when a contract said arbitration they brought a state court action in their own name only when their contract said arbitration and if they had brought the arbitration claim in their own name this case would have been over five years ago that's not what happened now they say in his argument it mostly was about jurisdiction i'll get that if you want to but he says the south carolina court of appeal sent back these cases that's now what south carolina court of appeals did the south carolina court of appeal sent back the chorus in case their individual claim the caption just look at the captions and cafes are a big deal in south carolina because of a statute about the caption on our motion was against the carlson not in your representative capacity the trial court's order was against the carlson's nothing about in your representative guilty of waiver it was based on this the plainest put in this laundry list of stuff apparently there bought her a little so these are all the things you did that constitute wave i spit out looking through this list trying to figure how did it tell you which case wh at happened is all of these things first to every single one of was something to happen in one of the under other hundred forty cases that were still pending as an individual case and that's what he was relying on to say we waived the court of appeals said those other cases the class that was alleged at the time are irrelevant to the issue before us the question is what did they do in the carlson case i didn't do anything in the carlson case that waive it so you compel arbitration to me that makes it crystal clear that the south carolina court of appeals did not view this as a head anything to a class arbitration i argued that case i wrote the briefs in that case class arbitration was never an issue in the court of appeals nor could it be because the class had not been certified now they say that they came back in the arbitration with the same thing as they filed in state court again that's was false the only thing that had been filed in state court was one hundred forty class they filed their two thousand class complaint as an exhibit to their filed motion to a m which was never heard never granted so in the court of appeal simply carlson and just the carlson's because us the only people that the court of appeals had jurisdiction over to arbitration that's when the carlson's added two  they could have come in and just done their own case and we wouldn't be here we're here because of the class allegations that's what this case is about it's not about the carlson's it's about the class we filed our petition with the district court before there was any hearings before the arbitrator a single say that we didn't start this until afterwards from the very first moment that we got to arbitration and we saw that they were trying to do a class arbitration we objected over and over again and the record clearly reflects that this wasn't some oh he's ruled against us on a construction ward let's run to the federal court that's not what happened we had a conference they said this is what we're going to do we filed our petition two days later before any we have never argued that a class claim was being compelled arbitration they seem to say that we've made at all or that's what we ask is simply not true every stage of this case we have said you carlson's and just because that's the they talk about that as a procedure act procedural act it looks a lot like the f a if you compare the two but it is not has no pronouncement in there that has anything to do with the issue before this court which is who decides this question who decides whether or not this arbitration agreement allows class arbitration that's the only question before the court and what what provision of the f a is the district court the authority to decide that because the kind of an odd bird it has federal law preempt state law but it doesn't give you federal question jurisdiction our yard has always been diversity diversity over carson's themselves because of seventy more than seventy five thousand dollars is complete diversity as you said between the tables and cafe because it's more than five million dollars and there's complete diversity between the tables or and cafe doesn't require that then they try to do this local controversy argument in their brief but you've got at least one defendant who's diverse so you don't fit that argument and then they raise worker fell and won and we won on one issue the carlson's have to go back to arbitration it had nothing to do with class arbitration in the state court proceeding about the motion to compel that was aimed solely at the ca