have please the court david paoli on behalf of the appellant robert schwartz good morning i would ask if i could please have two minutes of my remarks saved so that i could conclude several weeks ago this may be harmless here because it's preemption i understand your honor and that is where my comments will begin i imagine will probably be the middle and probably end there as well thank you as you know you all i don't recall that there's an issue there about a medical malpractise claims no there's my right that's not in that case you're correct there is not a medical here you've got a medical malpractise claim and also with seem to me you have some other and whether reaching the merits the district court with say there's preemption or not time with tell but i would like to see that this report have a chance to rule on that and let you guys argue for t to the district court and argue the fraud and argue the amount of medical malpractise and how they come in so at least as one judge that i'm interested in the amendment issue i appreciate that your honor and the jur assad versus pioneer balloons the district court judge in fact it granted leave to amend in very much the exact same situation and of course this court in small versus cleveland addressed this issue with regard to the same district court and the and eliminating a case by case was brought here and the failure or the request for an amendment was included in that case and this court determined that  leave to a man should have been given to to cure the technical deficiency that the district court had identified in your simple cover sheet filed with your first complaint the sort of diversity of citizenship and in the civil cover sheet your honor you're correct we did we did list the citizenship of mr swartz which i argued before a judge hadn't should have cured the technical deficiency that he  judge hadn't was appointed and could and confirmed and through a restructuring of caseload this case there was a great falls case that's had as chambers in great falls that was assigned to him when he had that first scheduling conference just malloy didn't raise any question about jurisdiction actually judgment i specifically raised the question and looked right at defense counsel and asked if you could but he didn't say there was interested no he did claims or defenses or parties as ronnie decides that jurisdictions not adequately proceed and you guys are out that is correct i believe that order came not even two weeks before we were to argue a yes we do make that challenge your honor we claim that this is a me will plan a multiple employer welfare arrangement that part of the record has not and developed below but we do believe that it is grant that the medical malpractise claims don't relate to it that they would be free and i see your point your honor and i think that the argument could be made that they are related in that it's the claims handling process however i think that medical malpractise has never been taken over by the federal response or any other federal law to  in that regard was joined at the hip if you will your honor in the medical determinations which then caused robert's words so much problem and the cessation of treatment that he so desperately needed at the time treatments i might add that were multiple and staged and were cut off as a result of this insurance company's conduct and being involved in the medical care and treatment of this man and i'm just thinking out that maybe  do in this case is if we agree with you on the and then the process is send it back and have on the preemption matter hassel mountain district court person in your brief you lump everything into the montana unfair trade practices act you see the case filed as sort of the e in this case just to sort of play off some of the questions are asked earlier and really what potentials main argument in this case is that this presents an unusual situation where every single legal question is cabined by ninth circuit authority so that there's really no question substantial enough that the court ought to give the you know the district court the first crack at it i could also you acknowledge that the district court kind of man under the and i think of the standard of review my position is that that the district court can be affirmed and the answer is this is this what you know in evaluating the district court's ruling i'm somewhat the same position as this court in that i wasn't there in the courtroom that you're an advocate in true enough i wasn't there in the courtroom i did not see the parties and how they urged their technicalities similar to what's going on in this case but there's also in the court specifically referenced society's interest in the finale of litigation and sometimes it wasn't the dispositive reason why the case was the sound it was  over reaching and so i agree with that that's right and why is that the point in terms of what happened here it's different if there's a technical problem everybody agrees that diversity could be pleaded and sure the you know that date went by all the medical malpractise for instance if you look at the record as to what the medical malpractise was it was the kind of administrative malpractise that your honor reference the only document to which the appellate referred in referring what's wrong with just trying to manage a suggestion that maybe if we think the amendment should have been given that on the futility issues just send it back and let the district court do its job that might be that the right thing to do but my position is it wouldn't be the right thing to do in this case and here's why the type of fraud and medical malpractise that's alleged in this complaint is completely cabin by ninth circuit authority starting with greenie the very same statute the he was in a traditional insurance product he was not a member of an h m o and prudential does not employ treating physicians to all production over because it because it's the way it's clearly pleased that he's in the traditional insurance product and he also pleads there we're not even talking about the prospect of utilization review or medical necessity review we're talking about retrospectively he had already had the first treatment when the first review was done we're additional indemnity product that is the the grist of a coverage determination there's really nothing to see here it's the same kind of determination in the sense of benefits determination that was an issue in bass and spain perino and many others that this course is the credentials not responsible for any any medical malpractise treatment it's not responsible for it doesn't treat period in the us period it doesn't treat period doesn't employ positions it doesn't have the zisha agents it gives  it's not easy if you really think it's right for us to make a decision based on even excellent verbal presentations and some of these issues and the priest from the district court didn't even address the issues because i'm really bothered by the idea that we should do the district court's job because the district court thought that it was running a tight ship and made a mistake and not permitting amendment i understand the question of permit an amendment about it we're just hearing an oral argument of him really an opportunity to speak about it right breach take a close look at it and your argument may be one hundred percent correct and it's just you know back and forth with three appellate judges and these things are maybe they're done and they're just record and you could be absolutely right as to who you are into greeny and all the rest of my medical malpractise doesn't work period in this case you know treat anybody who you know use your provider very well anyway if you so the institute just to sum up we would ask that plan that has not been fully developed the medical proper act this and the situation that this gentleman has expressed to you that they do not hire retain or keep on doctors that has not been developed we haven't had a medical malpractise claim somebody  case because they were involved in cutting off his treatment for the i think treatment which then eliminated the staging and and really took away his treatment he didn't get to complete the treatment because of the action that they took whether it be back somewhere in a corporate office shuffling paper i don't know we haven't been allowed to do the sky every on that and if he's asking for directions to the district court i would ask for the opportunity to be able to develop this record properly for so the next time hopefully we don't have to come back but so that it is full and complete appreciate your time thank you very much to certain sorts of men of your decision pretty quickly