class action allegations without having first considered mr carter's unconscionable the argument challenging the enforceability of that class action waiver and the second issue is whether it was an abus discretion for the district court to decline to clarify whether the dismissal of the class action allocations was with or without prejudice following a motion for reconsideration on the first issue your honors well sensually this case ultimately is about the desire for mr carter to obtain clarification as to whether the district court considered is unconscionable the argument challenging ruled the class action waiver is enforceable right but if we can decide the question of unconscionable ity does it even matter whether the just a court gave due consideration to the argument in other words regardless of whether the disc gave due consideration to the unconscionable of the argument either the class action waiver is enforceable or it's not and this panel can decide that question right we believe that if it if the unconscionably argument was considered that this  district dead court did as to whether or not the district judge jed or did not consider the enforceability of the contract and for what they can as a statement unless you disagree with it i complete question i'm going to ask and that's the status of the case right now what she cited in her room was buckeye and we know now with the justice scalia's excellent opinion that he wants arbitration a good contract on the same on the same level as any other contract so we ha from the language and following motion for reconsideration with a class action allegation were dismissed with the result and she she said i've dismissed without prejudice now in the federal court is some we deal with all the time is jurisdiction issue and we have no jurisdiction over a case when a judge dismisses without prejudice because the discourse still has the case there's an action underneath every complaint and till last action is dismissed we don't have jurisdiction it seems to me as just clears it can be that what the district court did was dismissed without prejudice that is you can file your complaint again but you're going to have to follow as she pointed out here buckeye and go and get the arbitrator to make the first cut it and then you can come back and file again it seems to me so clear that i didn't understand why we're here on this case and maybe i'm missing something a happy to address that glad i'm i would like to be educated  we do not dispute that the initial order dismissed the complaint without prejudice and deny this moot the motion to strike the class allegations and then stay the matter pending resolution in arbitration on a motion for reconsideration the appellee rent a center wanted to make absolutely certain that mr carter could not assert class claims in arbitration and so imo should prove consideration the district judge said yes i'm eliminating the class action allegations i'm sending this to arbitration on an individual basis only and because of language such as eliminated the class claims and even after we asked for clarification the district judge and not say whether it was with or without prejudice we were concerned that it was if it was with prejudice even if the arbitrator were to find that the agreement is void and therefore enforceable we would still be for clothes from arguing class claims if we went back to the district i don't know where the district court said that i've read the district court's orders are you quoting the district court the word that the district court used was eliminated referring to a class claims raises of arbitration yes and in terms of jurisdiction i believe the case law for them supports the position that you know even if the complaint or even if the class allegations were dismissed without prejudice only because it course she's left it open it here by order the defendant's motion to compel laboratory is granted you're going to go to arbitration it is further ordered the defense motion to dismiss is granted accordingly plain 's complaint is just missed without prejudice that is i'm keeping the action open it is further ordered the did venice motion to strike is denied as moot now i don't know how the dis could have been i mean maybe you want to maybe you wanted to say and i mean so and so but i don't know how it could be more clear what she said and continually you asked for for clarification and she pointed out i and so i have as a former district judge i just thought it was pretty clear and i don't know why we're here it's going to go to an arbitration maybe the arbitrator is going to take it up maybe he doesn't but when the but it's clear that under the scalia case that it has to be treated and that's supposed to go to arbitration first but the arbitration has to be enforced before anybody is going to be harmed and would be enforced before this district judge because the district judge is still has the action so maybe you could explain this to me i'm just missing something we were concerned that even though the complaint on  minors and you'd like to have a ruling at that time but the district george says no i'm not going to rule on that now you go see the arbitrator first and then all rule on these issues and i don't not sure that you can cite a case that tells me the district court has to follow how you want to do it rather than what the disk or wants to do where can we see where can we say the district judge committed reversible error i think if we go we will step back to the book i decision which your honor mentioned which says that if you're unless you're challenging the average person in the image directly and you're just if you're challenging the contract as a whole as void for example and that decision has to be decided by the arbitrator here interestingly the arbitration center we needed to address that issue first and so the district court said initially i'm denying the request to strike as moot but then on reconsideration he said no i'm eliminating the class claims and we thought well if we prevail in our claim in arbitration that th void there really is no class action waiver to deal with and so if it's with prejudice we're essentially foreclosed from our at that that argument so really we want clarification if it was truly just missed without not on par with the discover bank rule that was rejected in concepcion concepcion was concerned with state law rules that were directly adverse to arbitration they singled out arbitration for special treatment and that's what the discover bank rule did and this court in the each of our decision found that california unconscious believe the law was not preempted by the f a a and nevada is in california is unconscionable the law is very very similar and so we think so if i understand you're you feel home free if you realize that the district that the ivory trade is going to have the first cut at it everybody's in agreement with that it's got to go to arbitration that the arbitrator may decide the case for you but either way the district court is waiting for the arbitration result and would make the ultimate decision on that fact if the arbitrator were to find that controlling your in the class isn't going to the right so it's individual claims right now only but if we the arbitrator were to decide that the arbitration agreement is unenforceable then there is no class waiver issue and so we have to go back to the district would have to say ok you're back now and you fight you know you start the case again right sensually yes and so it's going back to the very beginning if unconscionably was actually decided and again we think it it was it wasn't ruled upon because i think what the district court judge did was accepted defendants centers argument that post conception own you can never bring a from that argument we're bringing a case by case fact specific argument that this particular class action waiver is procedural in some sense to the unconscionable so if the district court did consider that argument we think that it should be times so the disjunction motives decided i think we're going up three times and the district judge does not change the opinion i don't see what the discharge is made any decisions on this case to the merits repeatedly in the order in the original order in the record on eight the district court said plaintiff has not met its burden to demonstrate that the greenman is unconscionable subsequently your honor in response to my colleague's motion reconsideration the court said i reviewed the arguments and the previous orders and i reject them so the arguments were actually rejected three times and it's important your honor that it was quite specific contrary to this assertion that the door because the it was dismissed without prejudice it was dismissed without prejudice your honor but under the buckeye doctrine under the rent a center doctrine which is the same render center and the supreme court the courts and the challenge the underlying arbitration agreement the arbitrator or not the courts is going to decide the issue whether or not there's a palin claims the container agreement the lease purchase agreement is void or not that's going to be decided all agree that only the court can decide challenges to the class action waiver that is exactly what the court did my colleague claims the court didn't do it and in fact the court did it three separate times but as your honor pointed out a little bit earlier even if the court did not do it under ninth circuit precedent the curley case and other cases this court can now the sign whether or not the class action waiver is or is not enforceable and we say the district court already did it but the and the point of all those cases is this class action waivers are enforceable the days of conjuring up as justice scalia said of these devices of unconscionable a need to destroy class action waivers are long gone concepcion rejected that concept and noted as the ninth circuit has that it he said contracts are what contracts are today and he said contract is not a basis to invalidate agreement importantly as well your honor and we  reject and in our opening brief we pointed out appellant did not reject it's on the front line it's all in bold at the end it says you have the right to reject because appellant did not reject under control the ninth circuit law there cannot be procedural unconscionable and those didn't refer to opt outs with fifteen days they were i'm not sure they're controlling weren't they thirty or sixty days or something or other like your honor i don't know i know that agreement you still get to rent the vehicle or whatever are you absolutely absolutely your honor so this was a voluntary arbitration room and i appreciate your asking a question your honor and the ninth show both procedural and substantive and for that matter your honor opposing counsel my colleague cannot either show substantive unconscionably either which you which goes to the issue of of of one sidedness what not that argument that you make which is somehow that the class waiver only benefits ran a center was also rejected in concepcion and concepcion pointed out and discover bank one of the issues within discover bank doctored was well the class action waiver favors the business not the individual concepcion rejects that and concepcion also notice is another issue and that is there is benefit to both sides concepcion enough matter still nielson to recognize the class actions aren't really good and in fact it adds a layer of complexity length whatnot so there is a benefit to both sides that there's a class action waiver it benefits render center the apple of the it also benefits the appellant it's also critical my colleague in the briefing says well the concepcion agreement was very consumer friendly actually i don't get that argument because the plaintiff gets to decide whether he wants to proceed individually or a class action that he thinks is too complicated or discover individuality things that's  bilateral arbitration not class arbitration is a good thing your honor might my colleague references the many cases he cites to support his position they do not support his position i think it's worthy of noting they cite to a picardy from the nevada supreme court for the proposition that class action waivers are important public policy and they need to be enforced the picardy case they cite was abrogated in a subsequent place called vs a traditional district they also cites to a case called rodriguez vs eight hundred two services which was the same judge and same counsel and in that case the court judge navarro said we're not going to force a class action waiver the cite is controlling as well and the plaintiffs have not met their burden to show that the class action waivers unenforceable i think here i think your discussion is very interesting that i'm wondering whether it's relevant i'm looking now at the district judge order and she has an experience just for jeff yes she knows the difference between dismissing a complaint and dismissing an action because we learned that that's simple a b c federal jurisdiction and what you says is accordingly plaintiff's complaint is dismissed without prejudice says nothing about the action unless the action is interesting but i wonder if it's relevant to the decision if in fact you can you can show me some place in the record where this is been dismissed with prejudice or that the court as they usually think this court does have jurisdiction and the reason for that is a state of proceedings is not appealable under the federal arbitration act a dismissal with or without prejudice is in fact appealing so i do believe we are properly before this court today now you cite me a case if you would please where the district court dismisses the complaint without prejudice and doesn't say anything about the action but that case is now over and it can come up to court to have a case citing you know that i understood you just told me but i'm not sure it fits federal jurisdiction your honor i would i would point to the act itself section sixteen of the f a a which deals with dismissals and while i can't as we sit here point exactly to a case i believe in mohamed versus goober and i believe in other ninth circuit cases that have been before this court  circuit has have rule that's have i believe all the circuits that a dismissal without prejudice does fall within the proper grounds for appeal under the federal approach we have granted we have had some rather strange opinion saying the we interpret the district court as granting a month and a dismissal of the action we have gone that far i happen to disagree with that i think you're either have jurisdiction you don't but in this case it's clear that that is not what she wants to do what she wants to do is to hold the case off when it goes to arbitration have the arbitration come back to her then send it up to the united circuit that's clear to me and they in the record so i don't think we can use the fudging cases which i call them fudging cases to overcome our jurisdiction and this is serious because unless it's there we can't give you an answer we have no jurisdiction we have no subject matter your honor i think what the court did was it sans the attack on the arbitration agreement itself to the arbitrator as it have to do under ran a center west first jackson and  buckeye with respect to the without prejudice the only way for them to get back to the district court is if the arbitrator determines that the arbitration agreement itself is enforceable if the arbitrator determines that the underlying rental purchase agreement the container agreement is void that's decided and that's that's a case that's going to be before the arbitrator so i agree your honor that the court held it open but only in the very limited hypothetical circumstances where the arbitrator decides that the arbitration agreement is somehow under forcible i don't know how they would ever be able to show that in court or otherwise as right that's when it would come back to district court but she's holding things open so she can start from there it seems to me that's what her motive this your honor she already ruled that the class action waiver was in forcible and now was solidly before her agreement not the container agreement if the arbitrator nominee was sure they ever made that argument by the way that it was under forcible but if the arbitrator decided that the arbitration agreement was unenforceable then it would come back otherwise nothing's coming back the arbitrator the judge made the decision that was before her which is it's for the court to decide where the class action wavers and forcible judge navarro said it isn't forcible i'm making that decision and then i'm sending the rest of it to the arbitrator for disposition by the arbitrator right so your argument is because she decided that the class asked certain waiver w we cited to the court in the original order plaintiff set the judge said plaintiff has not met its burden to demonstrate the agreement is unconscionable yes your honor to be very clear judge navarro decided that the class action waiver was not unconscionable and was in forcible it was their burden to try to show that it was unconscionable and they failed to meet their burden with the page of the record when she made that specific ruling e r zero zero eight your hon plaintiff has not met his burning to demonstrate the agreement is unconscionable subsequently your honor in the order on our motion for reconsideration where we asked the court to clarify exactly what it was doing in the court to clarify that arbitrator then it would have to come back for enforceability so there is a way that it might be coming back right your honor yes and i'm sorry i may have overstated what i meant just aren't certain instances very limited instances for example under section five if we can agree an arbitrator but otherwise with respect to this challenge it's staying in arbitration and i think if the court has said this was dismissed without prejudice the court said it said it again it's crystal clear your honors i've taken a second look at that page of the orders zero zero eight and i don't see the word unconscious to bill the what do you read the order is saying having concluded that plaintiff has failed to meet its burden of demonstrating th which is incorporated in in the lease project remit is an enforceable it doesn't say unconscionable we think again that the district court did not pass on the unconscionable your argument but instead believe that you can no longer challenge class action waivers post conception on and so we think that mr carter was not heard on that particular argument and terms of procedural and substantive unconscionably the court raise the opt out provision i would just like to reiterate that in the briefing we pointed that that argument was not raised at the district court level by rent a center and we believe they are pro close from arguing that the opt out provision precludes a finding of contract of adhesion but to the extent that it is considered we do believe that mere fifteen days to opt out does not provide a meaningful opportunity hooper decision approved of a thirty day opt out provision and that same case cited the kilgore decision which approved of a sixty day opt out provision we don't think fifteen days is enough and so given the waiver of the argument and in reality there were no specific procedural or substantive conscient billion challenges by rent a center at the district court level there are only argument was that concepcion forecloses the challenge to the class action waiver and we can believe that's incorrect the o'brien decision which is from a district court disagreed that post concepcion you can no longer challenge class action waivers is unconscionable