white will proceed to the day calendar the first case is gail versus chicago title insurance number seventeen thirty four ninety seven absolutely but but here's so here are the reasons why first of all let's take the proposition that rockwell says we look to the amended complaint to assess your section what the amended complaint in this case says is that this is  original source requirement of the false claims act which at the time was dressed actual and the false claims act said to be an original source you had to be an original source of the allegations in the case well what were the allegations in the case the supreme court said well they were the allegations of the original complaint as amended you couldn't be an original source of only allegations contained in the original complaint and not allegations contained in the amended complaint which in that case were actually the ones th tried and say that you have originals were status so what was required in that case was not met and in this case what was required was met with you do you have any did this is a form of diversity jurisdiction right rector you have any cases in which that say the diversity jurisdiction cannot be amended away i know that you know if we have diversity at the very beginning when a complaint is filed that if the plaintiffs moves then and diversity is destroyed by in the same that you based on the same transaction or occurrence what have you but he meant a complaint does not adequately support diversity jurisdiction do you have any case saying that diversity nonetheless  s i'm going to answer yes although with a carry out which is that i think what's important is that the amended complaint has to show the jurisdiction exists but the question is how so let me give you an example in this is this could be a case yes it is the amended complaint doesn't have to versity well yes so so let me let me give you a blank was a case in which a canadian citizen was a plaintiff along with the new york citizen they sued the new york to allege diversity jurisdiction and also to to remove the non diverse new york plaintiffs so what was going to be the case was the canadian citizen was going to be suing the new york company the only problem was that subsequent to filing the case the diversity she could allege at the outset there was jurisdiction so even though if she were bringing that case afresh at that point when the amount a complaint was filed she couldn't start that case in court at that time the amendment was proper because she could allege that she had been diverse at the time the case was filed and this is exactly the same paradigm we're where here the allegation in the fourth minute complaint is this case was filed as a class action under cafe and the rule twenty three it met the standard for the amount of controversy an aggregate of five billion dollars and there's no dispute that there's minimal versus we agree with this is allows every you can game this every time you want just a had a claim in the first place i don't think so you are because what you just described would still not be allowed it's not allowed today as as i think many courts have right that what you did was not what we did because we actually we actually moved for classification obtained a class that class d sort of and that with was case was brought the amount of controversy was over the jurisdictional threshold subsequently part of the note was paid down so that it fell underneath the jurisdictional threshold and amended complaint that reflects that change in circumstances but let's take a different case where  original five thousand dollars and then you say well we were wrong it's really only four thousand if it was wrong at the outset that's then and that he was the court never had jurisdiction to begin with but there's no allegation here that the allegation of the amount of controversy was wrong when this case was filed it was right in fact the reason why the case was decertified was because of a change in the law as a result of walmart and the defendant saying that the monetary relief sought was not incidental it was too much so so so i think this case actually falls within the  where you have a good faith allegation of diversity jurisdiction that is true at the time there are subsequent events in the course of litigation in the blanket was that party moving from one state to another here was d c certification by the court where the case was no longer a class action at that that that's a change in fat well what wal mart was saying you're not entitled to whether well it may well be that you had that your legal theory got cut off from underneath you but that doesn't mean that it was legitimate when you that so we're talking about this very formalized argument that somehow when we amended the complaint to conform to that and we accept it basically accepted the dic district judges determination and said we're not going to try again where we disagree the district court decertified in your know and i think with depending on how this court rules that's going to that's going to dictate what the answer would be going forward and that's a fair point and i understand that i think i want the court to get hung up on the voluntariness because i don't think that's the critical assessment i think the assessment is this is the context where there had been a class action that was brought in federal court it was prosecuted as a class action nobody can dispute that nobody can dispute as a class action that the aggregate amount of controversy was five million dollars the district court then ruled now nobody disputes that at that point the court retain jurisdiction and it would have even if at the moment the court ruled we said ok judge we're not going to try again what the defendants contend is simply because the amended complaint reflects that fact that the court lost restriction of that point and i just do not believe that that's when the an amended complaint that is filed if you start with a fed complaint that has both federal a federal question claim and a state law supplemental can address stiction claim if you amend the complaint and remove everything federal about it and we file with just state law complaints the court such situation from yours that's in effect a federal question rule that is not a diversity rule well we have we have kaffir has a lot of different characteristics and you know it does come under the described it as a diversity statute i believe this court and an f five capital and in touch to describe it doesn't meant to diversity i think it should be viewed in the context of diversity and i would ask the court what happens if we did exactly what we did present here there can be no allegation that this case was either filed in federal court in a way to abuse from a court restriction as i think one could conclude in the in re touch case and there's no contention nor could they be that the amendment in this case was some sort of effort manipulation but we need to have a clear rule i think what we look to in determining jurisdiction and what context and we're not going to examine the parties intent all the time we look at situations that provide a possibility for abuse one way another understood and i think that there's i think it would be a mistake to try to draw a bright line rule that anytime there's an amendment that's it if you look at this court's reasoning in the tongue cook case for example which is a case in which the court said that  t the legal in possibility of recovery at the outset must be so certain as diversion we negate the plaintiff's good faith in assessing the claim what is the rule going forward for you to win even though you do amend the complainant take says if it was legally impossible at the time then that will negate it so obviously if the point of comes along and says i'm from new york in my adversaries from connecticut and it turns out at that time that was not true or the plaintiff amends the complaint and says actually that was not t uncertain at the time it was pled that that was the amount of controversy that it's accepted and i think the i think that that reynolds case out of ford as an example of that were actually there was a subsequent event in the note being paid down here the subsequent event is the court amendment of the complaint is the pivotal point remember the complaint and also what's relevant here is is that is the way that the collapse of occasion ruling was handed down it was not with prejudice it was without prejudice it was also without reasoning it was unclear what they needed to do to amend their complaint to satisfy the district court on class certification the court in the court invited them to attempt again the core left it on the table they were discussing but gave no allegations when the complaint was filed but in many complaint the plaintiff withdraws the jurisdictional allegations withdraws the basis from jurisdiction from the complaint the case should be dismissed unless the plaintiff then puts back other replacement jurisdictional allegations so when you withdraw the basis for jurisdiction and don't replace it in an amended complaint the amended complaint is absent jurisdiction and though my opposing counsel cited the leblanc case that case was rockwell let's look at how this court in the circumstances presented here addressed rockwell and then i'm talking specifically about in touch concepts albeit in dicta dress this was civic circumstances presented here and my specific circumstances was on a plane from a port and then voluntarily amends the court looks at the amended complaint and then this court went on to say so if this case had been originally filed in federal court the district court would have had to dismiss it as soon as point to file the first american point which dropped all class allegations and their boy thereby destroyed the basis for jurisdiction let's talk for a minute about the circumstances of the amendment of the complaint because it to me like there was a sandbagging element here based on what the transcript showed that no amendment was strictly speaking necessary to go forward the district court said it's not really necessary but it looked like counsel for chicago tight on that may have been you kind of insisted on  having the complaint filed that conform to the district court's ruling that they the case been pending for so long without action look like they just court was you know eagerly awaiting settlement discussions take place in years had passed and were to clarify the legal issue you all pressed the plaintiffs for an amendment of the complaint rather than just allowing them to say ok we were going for an individual basis which the court's rulings had limited you to in any event why should we in for a measure of bad faith here that would overcome some of the arguments you're making respectfully i don't believe that's an accurate recitation of how this went down in when in two thousand twelve when the court does certify the class the court said specifically to everybody well to be clear i don't mean to apply that no class should ever be certified on any issue in this case and further went to one to say i just want to assure the nobody we were motions no action there were motions pending that the court had ruled upon there was action there are motions made on standing its ground and another motion practice during that time there was a decision of the parties we waited for the plaintiffs were restless and did not want to have to live by the one way intervention rule have to wait for the sequence emotions so on their own volition they wrote a letter to the court saying we're prepared to abandon our damages claim and move forward exclusively in our individual capacities and then this is critical at the subsequent court conference on march ninth two thousand and sixteen this is what point is counsel said so the question that was left open was in fact coming back and removing under b three so the class allegations are in the complaint the intention the standing issue was removed to come back in to be free motion what we're saying in this letter is that the possibility of that occurring was something we were taking off the table we discussed this mr gale he understands what we are proposing which is to withdraw the court specifically left the issue of classification open invited them to come back it was anticipated that they would come back yes the case took a long time to perceive the motion practice that's not another party that is just alluded to dismiss instructed the plaintiffs to amend their complaint to remove the class allegations and they did that's reading the transcript and that mr newman says that's the first order of business mr newman is who first american counsel yes he says the first order of business as we said in a letter to the court is for the plaintiffs to move to him and file that we have an opportunity to review it see the claims that are then asserted that there is only equitable relief and then we go forward that will be the fourth and complaint and the court says that's not strictly speaking necessary and then they go ahead and do that was your saying that was their idea to begin with and so there was a letter that proceed in that that's in the record where was their idea to remove the class allegations from the can from the action and i think what was that back to them the only way to actually remove them from the action is to amend the complaint the idea to move forward without the class allegations was their idea no one told them to do anything no one instructed them to do anything no one was being held hostage this was routine decision made there was a dialogue back and forth what it means to remove class allegations from a complaint and that is through an amendment but no one told them to do it or persuaded them to do it you're saying also that even had they not ame without prejudice but it is the act as the court makes clear in rockwell as the this court makes clear in the touch the act in amendment is an important event it resets the allegations in the complaint the court looks to amend a complaint which supersedes the original c is this is a change in the allegations with regard to the complaint correct it would be like it would be like saying i wasn't that i'm a citizen of new york but i've done i was wrong i really am a citizen of connecticut and there's no diversity correct and i think that the three of the three our what do you think the options were with respect to amending the overall options obviously they have the right to appeal and they have the right to recertif would restart they would move to recertify until the moment they decided not to you're saying that they not remove the action you original class action allegation and i was standing the fact that they proceeded individually they'd be allowed to do that in federal court without the amendment correct that's what i meant yes but doesn't this proposed rule though also leave open the possibility that played just starts with a cafe with calf allegations in federal court decides that judges really like their case and so amends to eliminate the five million dollar element for example and get some self kicked out of a federal court so he can try again and state court court or say court he would have started there with me medias have to start a federal court with a five million dollar client a plaintiff great line of consumer class action wherever they wish to do so it might be removed perhaps by by a court and then decide you don't like how things are going and then drop the cafe related allergists are lots of machinations that attorneys can do and i think the court has specifically drawn a line between removal cases and non removal cases to address the formulation concern that is a line squarely into in touch fairly and touch makes you stay where you stir it if you try to alas if you star in federal court yeah right right correct if you start in federal court you stiction you remove all class allegations from the complaint you no longer have a basis to be in this court because caffeine is diversity but it is a special kind of person is based on the nature of the claim if the nature of the claim no longer exists it is no longer a class component to the case it doesn't belong in this court well unless unless you can make it regular twenty three three correct and they had an opportunity to move for certification again they specifically and on their own volition took in their own words took that off the table perspective it is the foundation question as to why why was because from our perspective everybody agreed we were at that point allowed to continue to pursue individual claims the defendant said well to take that to putin class nature off the table which would obviate this one way intervention rule well i'm not so sure because that defendants position was that because there was the always the possibility at least at that point that we might try again for classification that we were back in  land and as a result they had the right to avoid an adjudication on the merits before class notice of the one way intervention rule this was sort of the stumbling block and kind of i think was part of the reason for the delay but in any event to take that issue off the table and a s they put it to help them decide what resettling they said we think the first order of business is the man the complainant this is your adversary correct that you first proposed this in a letter to the court we did not propose amending the complaint what we said to the court was after d certification we had expressed an intent to try again we didn't have to do that and i don't think that my adversary is saying that the court would have lost restriction if at the moment of the survey cation said we're not going to try again but we said we're going to now you're right right and so the it let me let me just i know i'm very short on time so let me address what i think which was to say that in this case this is sort of equivalent to us saying we were wrong that's actually not true this is not a diversity case we come in and say we were wrong we weren't diverse or we were wrong we didn't meet the threshold no no no no we allege in the fourth american plane we were right we brought a class action and nobody disputes it really was a real class action not an attempt to manipulate the forum we alternately lost and we acquiesce to the judge we yes if we were if we withdrew jurisdiction allegations that we didn't because what we allegedly amended complaint is the state of things at the time of filing which is what all of the president says about half of the state of things at the time of filing was this was a case filed as a class action it was a case that dicta i think it's very important to consider that this is in the paradigm of diversity and i think judge kerning your concern about what if this invites a plaintiff who files in federal court wants to be there and then down the road finds things not working out so well can just amend the class allegations and say you know we're going to state court now that's not allowed if if there were any argument that when we filed this case we didn't have grounds upon which to file it as a class action with allegations then there wouldn't have been jurisdiction at the outset that's not my hypothetical that might have had grounds to understudy good faith cafe allegations that you decide you don't really want to be there things aren't going well so you just amend the complaint it and so you kind of retains restriction we are not allowed to amend away jurisdiction but by simply taking away the class allegation when it was in good faith at the time that it was brought and there's no dispute that it was so that the issues of form manipulation go both ways and i think at this point now we have an attempt at forming of manipulation by the defendants thank you thank you very much thank you for your arguments will reserve decision