point there is the statutory text can be read to impose essentially an ongoing requirement that the fens served after removal also consent to that removal so the statutory text here is fourteen forty six b two that is the basis of the unanimity requirement which requires that for actions removed under when actions are removed under fourteen forty one which is effectively the must join in and consent is obviously something that can be done after the fact and indeed in this case the mendelssohn defendants were not served until after removal but they neverthe jointer in that removal on its own before this issue had even been raised suggesting that they at least thought that was a requirement and this court has already recognized in the atlanta case that both parties cite frequently in their briefs that there that it is possible to read the unanimity requirement to apply to defendant served not only before removal but after removal as well so in the atlantic case the court said it was an unsettled issue on whether or not the unanimity requirement applied to defendant start after a move all you cite when it for the proposition that the defendant was served after atlanta suggests it does and n b c actually suggests on page fourteen no four that's brief that it would as well that it is a requirement defendants must be must all consent there is no reason to impose a limit so i actually i should clarify there is the old third circuit case that was prepare acts that did it in that context seem to suggest a later served defendant that was a right limited later  pleadings filed below i didn't see where you argued for now d with regard to the mental sun defendants and the district court did not address that argument and its  i'm just trying to figure out if that argument is waived it is not with your honor it's a docket one twelve which is not included in the excerpts of record i apologize for that but so if you remember at the procedural posture here with a little bit unusual what is that one twelve what's up doc it's an objection to the proposed judgment submitted by n b c but so just to recap and explain why the initial failure to do that doesn't shouldn't constitute a waiver here and d c first made a motion to twelve the six motion did not we have to look at the elements of the new york causes of action compare them to the elements of the queue fornia cause of action in order to determine under california law whether the two cases asserted the same primary right and therefore had identical claims but it looks like a broken versus philip morris states that the hermit a factor is the harm suffered not the specific remedy or the harm that cost the plaintiff the corresponding duty of the defendants and so here in office on a second amended complaint which is the one that the the court below found preclu included claims such as a violation of the right of privacy and publicity for advertising which is a very distinct harm then the confers an therese i mean is that is is a separate harm to have your likeness and  your your your image used for advertising to promote someone else's cause van is a simple breach of contract or fraud type actions that were at issue in the new york act pilot will have five minutes i will watch the clock to make sure that i stop at the at the end of my ten minutes the district court here was dealing with at least the twelfth complaint filed in four different jurisdictions which is recorded this is this district court below judge preggers and was dealing with at least the twelfth complaint filed in four different jurisdictions all of which sought the same relief for the same alleged wrong the alleged failure of n b c to pay royalties based on the broadcast of the video of ms by ewell's one thousand nine hundred four performance of not cracker on ice it properly concluded based on the southern district of new york's judgment which has been affirmed by the second circuit that all of clear and it starts when a civil action is removed when a civil action is removed soley under section fourteen forty one and all defendants who have been properly joined and served must join in or consent to the removal of the action their position would have this court read out the first phrase when a civil action is removed and also read out a second phrase that all defendants who have been properly joined and served must join in the removal there's no ambiguity in that statute and as your honor pointed out there has no court that has ever held that a later service of a defendant somehow creates in a plaintiff a right to to allege that the later serve defendant is somehow non consenting until it strikes me as to read it any other way would make sense of the defendant the defendants who have been served have a time limit in which to remove the case duly noted that's correct and it's within within thirty days of service strikes me at some point the poor district judge needs to speaking as a district judge and somewhat sympathetic they've got to know when they can start working on a case or not and if you have a defendant who hasn't been served at the time of removal and then comes into the case six months later that does happen and they don't consent to then all of a sudden all that work is is taken away from the court and sent back to the state court is that appropriate section fourteen forty eight answers that question your honor and it says that the later service of a defendant doesn't deprive that defendant of its right to seek a rematch so i think congress has spoken on this issue and it says that unfortunately and that's an area where we have a leader sort of defendant who comes also like to quickly address your honor while the briefing below was focused on removal based on diversity jurisdiction the if you look at the court's order thirteen thirty eight so the notion that this could somehow belong in state court just doesn't work under thirteen thirty eight because the copyright at act less in this court exclusive jurisdiction i'd like to turn if i ma to the preclusion issue which my colleague i believe didn't didn't really address and that is the choice of law that applies when a federal district court is evaluating the preclude effect of a prior judgment issued by a federal court exercising federal question jurisdiction there's no dispute here that the southern district of new york was exercising federal question jurisdiction that's the that's the judgment that th court was trying to give precludes effect to and the district court concluded that based on federal preclusion rules that any cause of action that arises out of the same transactional nucleus of operative fact would be pretty would be precluded under federal law now the court below as part of its analysis assumed that it had to look to california law first in order to determine how to treat a prior federal court's judgment when the  court decisions in two thousand and one in two thousand and eight and what you recently also held in daewoo in november of two thousand and seventeen because all of those cases say that when a subsequent court is evaluating the preclude fact of a federal question  is is questioned by de will and certainly by some talk in taylor the second answer your honor is if we assume that we do have to take this california detour what discretion does a california court have when it comes to analyzing a federal question judgment and some type answers this question and the court in some texas that is state cannot state cannot give a federal question judgment whatever precludes the effect it would give its own judgement so even if we take the california detour and say and look to what a california court would do the the discretion of the california court is limited by some tact and the california court of appeal has already has evaluated this the district judge relies on effect of the prior judgment of a federal court is determined by federal law and so to the extent that there is some disagreement in the priest some tact california a body of law we would say has been effectively  overruled by sometime in the language and sent back in language and taylor is unequivocal so to answer your question your honor even if we take the california detour we end up at the same point and that's the detour that the district court took however under what you held in  we're not sure if the constantini detour is required or even warranted or allowed when a court is evaluating a prior federal federal question judgment is a potentially improperly procedurally improper motion to convert that to the procedurally proper motion there is no there is no doubt that at the time of the conversion and we see had a right to file a rule  motion based on race judicata and the reason is because in the intervening time the southern district of new york had entered a judgment dismissing all of appellants claims with prejudice with prejudice as to n b c and the district court certainly exercised the discretion that and one last point on finality i just want to clarify that we don't take a position with respect to the mendelssohn parties mr palate will be addressing that issue but at least with respect to n b c there is absolutely no question that the southern district of new york's judgment was final it's been affirmed by the second circuit and the search has been denied so we we would say that there is no question that that judgment has precludes if fact and i'm close to the end of my time so unless there are more questions i'd like t good morning your honors i represent mr mendelsohn and mendelsohn entertainment group will see neither of whom ever entered into a contract with petitioner by all no lawyer in this judicata the briefs adequately set forth the several courts which have considered petitioners claim since you have consistently ruled against her and have sanctioned sanctioned her council all courts want to make certain that each person has a full and complete opportunity to have his or her grievances be heard in this case i submit that petitioner has had ample opportunities there comes a point in time when the judicial system itself has to say enough we have reached that time with respect to petitioners grievances no matter how characterized there are however are simply overburdened oh i'm less courts protect innocent parties for meritless claims the public loses respect for the judicial system the legal system should not be manipulated into the extortion system and finally if the maxim if it first gretchen the maxim if it first you don't succeed try try try thank you i'd like to begin responding to the judge asked his question about the burden on district court here and the actually there is a simple answer to this and that is fourteen forty seven c which provides that a motion to re and based on a de facto removal must be made within thirty days and so that essentially avoids the gamesmanship that is a concern if you interpret the rule to only served essentially trying to get it there is quickly as possible to prevent any other crimes but it doesn't give the play to the right if the defendant has the right to file a motion to remain and doesn't give the  plaintiff the right to object to federal court handling the case simply because the defendant didn't consent months ago when the other defendant removed the case and that's i think where you're extending the statute for defendants the text of the statute providing for unanimity doesn't distinguish this court has held that plane just can usually exercise it and there's no basis for essentially saying after after remov real unity rule is still there but it somehow switches from are a basis for objecting to removal jointly held by both defendants and plaintiffs to one only held by it and there's no issue with having it be months and months later either defendants or plaintiffs must make this motion within thirty days but this essentially eliminates the gamesmanship which you saw here and or in many other cases were playing this would essentially need to strategize about who to surf first and defendants could the district court here only ruled on the on the offer re man on diversity it's clear it was focusing on diversity jurisdiction and we see only removed based on diversity it actually had a typo where it included federal question jurisdiction and didn't include diversity jurisdiction in its initial removal but then filed a correction that's at docket twenty four saying it was only removing based on diversity jurisdiction and next there was a question your honor about whether