well just wait a moment while the exodus continues there seems to be some diminished interest in your argument to please don't take a person at least give me a chance were very interesting alleged the facts necessary to support the five million dollars jurisdictional minimum necessary for catholic jurisdiction at the time they instituted the first point action which will call boy one in two thousand  or on a motion to amend the complaint while that action was pending while the court recognized that appellant allegations in this case that cafe jurist is jurisdiction exist that were based on conduct which occurred and damages which accrued after the first case was commenced the court found that it was the appellant's burden to show that they could not have pled facts demonstrating the cat still applied because a police could have asserted katha jurisdiction based on the later conduct and subsequent damages when in an amended complaint the court offered no explanation you had you had you had your ledge thousands of dollars that your clients lost each one of them and then there were thousands of people who were in the same boat so you're dealing now with millions and millions of dollars well your honor number one we did not allege that there were thousands of dollars lost in the boy one action actually the two bases for  damages alleged in boyd one were a debt cancellation fee of two hundred fifty dollars and interest which resulted from the trust over charging an amount and then subsequently refunding that amount several months later the names plaintiffs were claiming to have lost thousands of dollars in fees and costs i don't believe there was any such allegation and there was no such allegation in in boyd one there wasn't and the there was an allegation that and i think it was upon information and belie that there were thousands of people who were in the same situation but even looking at it retrospectively if you assume thousands includes let's say two thousand people and the point had no basis for actually determining at the time boyd one was instituted exactly how many people or how much damage has existed at that point you'd still only get it based on this two hundred fifty dollars charge and the interest you'd still only get to if there were two thousand people five hundred thousand the point is that federal courts are courts of limited jurisdiction and that when you intend to invoke that jurisdiction you've got to not only have good faith allegations but if that is contested you have to show by a preponderance of the evidence that the five million dollars jurisdictional minimum was matt there were no circumstances and no knowledge that the individual plaintiffs in this case could have possibly known case are even subject to differing interpretations by courts the question of whether attorneys fees which crude after the commencement of an action can be used to jurisdictional minimum i think the weight of the law is that they can but there are certainly decisions to the contrary but beside that point the courts both  under for purposes of jurisdiction and for purposes of rest judicata a stablish a bright line rule that the examination needs to take place at the time the first action is instituted we're dealing with a situation as we indicated where in the ten years between the filing of boyd one and the filing of the second action there were hundreds of additional potential fees and expenses which formed the basis for our ability to assert that kaffir jurisdiction exists in this action but did not exist in boyd one in terms of that bright line rule this court as every court has indicated could not be clearer that the time to assess rest judicata and the time to assess subject matter and the amount in controversy is as of the time of the first complaint and there is absolutely no evidence in the record none which shows that the plaintiffs here in could asserted the five million dollar jurisdictional minimum in fact the trusts in attempting to prove this have to go outside of the record and cite to the complaint in boyd one which is not in the record to make this simply based on the fact that the complaint and void one said that there were thousands and many of these claims and void one where upon information to believe but they have to go outside of the record in order to suggest based on a piece here piece here piece there that the plaintiffs in boy one might have been able to assert the five million dollar minimum at the time boyden one was instituted in terms of the errors first the court as we indicated applied the wrong standard the court found that it was the plaintiff's burden to establish that they did not have the facts necessary to allege calf is five million dollar jurisdictional minimum of the time boyd one was instituted not the defendant's burden to demonstrate that those facts existed now that's in violation of well settled rules under katha and as this court said in blockbuster under katha as under the traditional rule the party asserting subject matter jurisdiction has the burden of proving it by a preponderance of the evidence showing that there is a reasonable probability that the jurisdictional minimum minimums could have been met you you reserved a couple minutes rebuttal yes we have to hear you then ok thank you good morning your honor julie steiner the attorney for the trust defendants the district court correctly dismissed point of state law claims is barred by raja judicata the court did not make any improper burden shifting in this case the trust offended is met their burden on judicata by demonstrating not with anything outside of the record but by pointing to and it must on such a case that the complaint and void one and the complaint in boyd to give them any burden to do however on their motions for reconsideration they brought forward evidence to say no we couldn't have raised cafe jurisdiction in two thousand and five and it was only then that the court said you failed you fail to show that you couldn't have raised kaffir then the court made an explicit finding at page i believe it is one ninety six in the record and one ninety three in the record twice that kaffir was fully available to them in two thousand and five and that the complaints themselves object of evidence showed that they could have asserted cafe in two thousand and five without anything else without any evidence that the complaints are different or that the facts are different or that anything changed they we have demonstrated grudge judicata they don't have to put anything in an opposition but if they want to show that they are caught it does not apply they should come forward with evidence and the court found on their motions for reconsideration that the evidence that they came forward with was speculative or not factually supportable that it really showed that they just forgot in two thousand and five to raise cafe which had just come into effect three months prior and that they're coming up with something now to say hey wait a minute i should have done it one of the complaints demonstrate the five million dollars in controversy requirement was met in both complain which we did not go outside of the record at page ninety six of the record we clearly assert and make sure that the court goes to and sees the boy one complaint amended complaint and second  complaint so clearly this is a non issue we did raise the issue of the first complaint when you look at the first complaint it goes through each of the name plaintive saying that there are thousands first that says that there are thousands of members and they as in any class action you don't know who your total number of people are at that time so it's thousands then with these named plaintiffs they go through the amount of money that each one overpaid or that they claim was overpaid and for instance with if you look at boyd once complaint at page seventeen it indicates that miss tera was charged two thousand three hundred eighty three dollars more than what she was supposed to pay with miss warders on page nineteen of the of the complaint over five thousand dollars more than what she should have paid so again what we need is a reasonable probability when you have thousands of members and each one is paying probability that they could have raised cafe at that point based upon a reasonable probability that five million dollars was met especially given that the complaint now in two thousand and fifteen is virtually identical with the same thousands of members and the same thousands of dollars that were allegedly overpaid and so given that we proved reza judicata and their motion for reconsideration they failed to show that they could not have raised cafe this court correct me the district you just a few points first when counsel discusses the alleged damages and the thousands of dollars she neglects to mention that  and this is outside of the record this is the boy one complaint but the crux of the allegations outside of the record i don't believe it is in the record nor was it nor was it raised below zero thing you would look at to try to find out whether whether you could have pled calf well none of these all i'm saying your honor is that none of the use arguments were before the judge below the judge cited to none of this  so none of this formed the basis for judge kogan decision but more importantly the the improper amounts the crux of that claim is that they charged these was owed based on the amount of time that they held these improper amounts so the idea that in boyd one we were claiming that they overcharged thousands of dollars in legal fees which they kept is completely illusory and is not based on the allegations in the complaint and that is the fundamental basis for this argument that somehow you take thousands and they allege there were thousands of dollars in damages they did not allege that there were thousands of dollars in damages nor could they have at that point nor could they which is that in terms of coming up with the jurisdictional minimum the party that's asserting that katha jurisdiction exists and a court finding th stiction exists cannot just take numbers and theories out of thin air at this crap as this court said in reversing the district court's finding that the five million dollar jurisdiction jurisdictional minimum was met the district court made no findings and offered no explanation as to how it calculated the amount in controversy here to be more than five million dollars  thank you thank you both will reserve decision