that a conditional ineffective because it was improperly led or does that mean that you the court would automatically strike the conditional portion and treated as as play i mean if it did i think i think jurisdiction you know who you have some other gentry we need some facts if you were to present the objection that woman oversea to get the facts and then come back it's under your theory they can't do that if they were indeed x for the initial all the time when the motion was filed and in just knows there were four months between when we filed a complaint and when they filed their motion to dismiss they had one and during that was not filed until actually the counterclaim it was filed in in april and then the motion to decline jurisdiction was filed in early mid or four months they engaged in action when the subject matter is whether whether you need to cover their defense in those acts we are we actually are covering their defense and we have been depending should be an exception to the mandatory jurisdiction nationally when they have the opportunity in this days to file their vote dismissed immediately after we commenced as if they would have done it that you just said you were going to do and then they would have to file their counter claim and then you would have removed based on either way we're back in the same boat or me i think i think you're correct i think that w can you hear me better yes yes i'm just trying to keep my voice up i apologize and if you're going to their point that this is so pointless because if we send you back to state court st francis has to decide because of it decides to file we're wasting our time it is it is day in france or fair to commit to not filing such a counter i don't know i don't know why as well that but then why are you wasting our to our why are you wasting our time because if it do you have a disagreement with the proposition that filing is such a counter claim brings us all right back to federal court well your honor i would also i mean that will bring the issue you have a disagreement with that proposition and there the answer may be yes but if the answer is no that it seems to me you really are wasting everybody's time unless you have an answer to question number two well your honor the answer i believe  coverage issue or the issue the case has been removed to federal or the counter claim has been filed and that seems right to me so if there's another way for st francis  you may not be the decision maker but it seems to me if the answer is saint francis is going to file counterclaim we're wasting our time because we're going to wind up right back in federal court so my premise had been i've thought about this must be that saint francis is a side it is willing in order to stay in state court to forgo the bad faith but apparently that's a decision hasn't been made yet so i'm still stuck here thinking gee i they really wasting our time and can you give me any help on that well your honor i mean clearly st francis medical center is is is the end you have hellion this action and so we are defending the court's record i do think honor i'm not quite sure that your question well if even assuming that you were right under the current posture that there is no advantage to any jurisdiction the district court then has then the district court moves to the discretionary factors liberated from the mandatory rule it goes to the discretionary which is the really hard factors in weighing that the district court did not take it would count the fact that if it goes back it's going to bounce turns out that unless st francis commits to not filing a counterclaim we're just spinning our wheels then i would sit there is a district court judge in wonder well those are any point now in sending this back to state court as it's going to be back on my plate a year from now so maybe if the judge poses that question the judge gilmore can actually get an answer from st francis as to whether it's going to file this counter claim bring the case back to federal court or maybe there's another way to break the cycle but you know we haven't arrived at it today and in our get out we're going to be back in the same place a year and a half later and that really doesn't seem to make sense to and sometimes it isn't trigger right at the beginning sometimes the availability of removal comes later in the case of the result and what i'd like you to speak to is whether the time taken before the motion was filed and i believe it was early in may was that so deep into the litigation that we should say you know that's something you should have done at the beginning we're now or five the cases that were cited by are not in in support of this argument that somehow same practices medical center had waived the motions of equine jurisdiction all had circumstances where the parties were well into discovery here just to start with his last answer and work or work on the time to lay we think for months is way too long that they knew all the facts they needed to file their motion this is right out of the block and our amended complaint was filed in late december they did not file their motion to dismiss until a day in the mean time they must have submitted and we documented in the briefs in different planes with the  i would make the other point that i would make is you ask my cop a good tough question why did you wait so long the file this motion and the answer was initially that it was you don't know and then  want to be really