or excuse me and we no longer believe the jurisdiction was was proper the reason you don't now believe that we have came to this determination i was not the counsel that filed the removal of the federal court but when i took over the case the district court had already assumed jurisdiction over the case and i did not even opposing counsel right now in their briefs have noted that they believe that jurisdiction is proper because that an issue under this i mean you just realized it recently like today or yesterday when is it that you came to the conclusion we had no jurisdiction that i knew of that would have a basis for for appeal because if the district court did not have jurisdiction under section thirty thirty eight then it took this cool of him if this court did have jurisdiction jurisdiction this was a proper place to file the appeal so what do you think we should do transferred to the second circuit with instructions that they instruct the district court to dismiss case well your honor i believe that this court has authority to determine both its own jurisdiction and the jurisdiction of the district court below so i do believe that any any appellate court could decide whether the district court had proper federal jurisdiction but of we don't have jurisdiction the district court that the removal was necessarily wrong yes your honor because there was no diversity jurisdiction that the removal was simply because  according to the pleadings filed by previous counsel and my understanding of the case during the arbitration there was heavily involved with issues related to ownership of the patent and not but not just necessarily ownership of the pan but even potentially  whether or not one of the paths was a continuation of one of the apparent application and because when the motion to confirm attached our final arbitration decision so if the final arbitration decision had or was necessary to consider those issues again in reaching a decision to confirm the jurisdiction would have been proper and i believe that that's what previous counsel felt i think i do believe that that could be one issue as a christian i believe that patters diction might have been one issue on which the kids would have been resolved except that the pleadings that were actually filed in state court did not actually require resolution of a well you mentioned she mentioned christianson v the coat which says that we shouldn't plate think oh yes  the question to avoid this jurisdictional think hong if if there is a plausible basis roger stiction shouldn't we keep it yes your honor because saying there's no plausible basis i personally although it's not phrase for the first time on appeal however that could have been one of the necessary elements required to resolve the arbitration issue i do not believe that the section one twenty issue was necessary at all to resolve have very well played an important role in the ultimate decision because i guess he was involved mr imus was associated with her at the time he filed the eight three three things that he filed during his relationship with them wouldn't it matter whether we considered it as filed as of the parent date or filed as of the child state that could be one possible one possible way require resolution by the court would have required deciding that point that's correct your honor that the claims that we were ready to that were filed in state court by the plaint an arbitrator that's expected to decide his way then they choose a neutral arbitrator in this case it's clear that all three are recruiters were expected to be neutral how how is that clear  the fact that the other side's counsel expressed their concern that coach would be on glossy side indicates that they expected him to be neutral but there's nothing in the arbitration agreement which is the contract between the parties that suggests that the arbitrator that is chosen must be neutral and have no prior affiliation with the party is there no your honor there's not there's also nothing that says to the contrary and in the law so was expecting all the arbitrator to be neutral and i believe the other side was too or was there a was there any reason to believe that one side had a right to object to the other side's selection of the individual arbitrator no your honor that we're not really can complain about our ability to object to them because each side has given a an opportunity to vet all of the arbitrators the issue that we're raising especially with real regard to arbitrary codes is that these that each side has given an opportunity to vet all of the arbitrators but i guess that's the heart of what i'm getting at is you have any right to vet their selection their particular arbitrator both sides act as if will assuming they mean we have jurisdiction assuming you have a right to an impartial arbitrator the one that they chose under what facts do you think give rise to  your assertion that this arbitrator that they chose was not possibly objective because at some point during the arbitration opposing counsel referred work to that arbitrator and it wasn't disclose days before the arbitration and which is one of the reasons not perhaps not the main reason that was listed in the e mail but that one of the reasons why my client decided that he was not going to attend the arbitration hearing was because he was arbitration waived all of his rights to appeal the first at first i would like to address the fact that one of the rights to appeal are statutorily granted and because we met the time requirements required by statu to appeal on the basis that we appealed that those white rights were not waived because there statutory rights and second law although there was not a formal there was just an informal letter as to why my client was not going to attend the final arbitration hearing everyone present knew it based on that e mail they knew that he was not going to it and they were aware of the issues that he was concerned about partiality the arbitrator making a decision about a third party who was not a party to the arbitration the there's a lot of talk about arbitration panels being able to do things that courts cannot do and that is true they can do some things  cannot do that doesn't mean they can do everything the courts cannot do arbitration pounds authority is generally based on contract and as g a m are the agreement that was being  honor no doubt philip addressed the jurisdictional issue first well your honor if i might i it will unquestionably turn to jurisdiction and i will unquestionably plan to spend the bulk of my argument on that however given what the court and you just heard i believe it's appropriate if you'll indulge me just for a minute or two to put what you just heard into context these there's a long long history of litigation with these parties in the two thousand and seven they entered a settlement agreement trying to put these issues to bit when they defaulted on their obligations we initiate an orbit initiated an arbitration proceeding and immediately they file a counterclaim seeking an interest in my client's patents and they said everything but if you want me to return to jurisdiction and that's exactly where i will go when verve ingle also first remove this case to federal court they've knowledged that the central claim was th what they said in the most notice for move all was right in the big picture it was wrong in the detail what they said in their notice of removal was that our petition which basically sought confirmation of an arbitration award gave this co jurisdiction that's not why what gave this court jurisdiction is that they had filed a counter claim that necessarily depended on whether their with the assets and property that was the subject of their counter claim belong to and kevin arms were the co inventors of that threat proper and it is undisputed that the prior settlement agreement so for the definition over of assets and property that excluded imes individual proper what's what's the federal issue the patent law issue at play here you're describing contractual issues or the basis for the patent law issue that is a player on or is that that the parent parent application to which all these this family patents claims priority was filed four years before my client became a member of verbs the continuation application on which the eight three three patent issued was filed several months after he became a member of now therefore the the ultimate resolution in actually in the reply brief on pages ten to eleven the appellant's talk about this whole situation hey there's an ongoing office action and and that's what's of this don't court if you want to take judicial notice of the filing date and the priority date you can do that but don't turn to the merits that's exactly the point the marriage will be determined by the u office that's the issue of federal patent law it's whether or not the claims relate back to the parent application filed in two thousand or whether they can the priority is not granted and therefore verve can make it over that under christians and versus cold even though there were patent issues that were decided in the arbitration what makes this different is that after the arbitration they filed a counter claim that was based on the business opportunity is a verb that necessarily turns on a determination of whether the business opportunity belong to or belong to my client and i don't understand why it it necessarily it seemed to me that it turned on the settlement agreement  turned out the language of the settlement agreement there's nothing in that language that says well anything you invented or filed during your time with us is ours anything that came before or after is yours it turns on interpretation of a contract contract interpretation well your honor what it said is that verve assets and property do not include quote any patents and patent applications owned via imes individual e and not obtained by i'm just a result  of role as a member of verb so i think that contractually it doesn't differentiate between birth property and between arms property and that's exactly the issue determining whether the business opportunity in their counter claim relates  date of the parent or whether it gets the benefit of the the date of the continuation so why would any court have to resolve what the priority is in order to figure out whether this is owned by items with their position all along has been that if it occurs during membership that it does belong to them so that that's exactly the position that they've taken throughout iraq where do they make that argument that is that that has that has reason articulate why i don't have the kind of player front of me and i don't recall what basis do they assert for ownership but they don't assert a basis for ownership of the counter claim your honor is is frankly frankly predicts forty six four and what it talks about is usurping business opportunities now i think of iran and i think this was part of your questions on meet me make sure when you talk about look this is determined by by contract about the p r you are certainly we think that's just foster there's no question that we think we have at least two defenses in this case that are dispositive collateral stoppel based on the arbitration panel's award and release but the defenses aren't what we're looking at the germans the rangers diction what we're looking at and that's clear from the christianson opinion i think what we're looking at to determine federal jurisdiction is that the allegations in the counter play right and i'm just trying to appreciate where there is an allegation in the counter claim that would actually implicate a substantial question a federal law and i'm not understand so i'm on jay fifteen the only or the i think of only have one or two pages of the counterclaim fifty and fifty one and so tell me which language in what we have all right i think that the counterclaim can assert jurisdiction then the arguments or they fall apart and i can't possibly stand before the court recount candor and tell you otherwise but the reason that we did not follow a motion to remand when they remove this case to federal court was because everybody understood that what this case was about was there are efforts to gain an interest in my client's individual property and so when they're talking about the business opportunities  necessarily turns in their prima facia case on whether they can make the case that it could potentially be verbs business opportunity or whether it related back to four years before my client even became a member of or in which case it making the plain statement that we did in the jurisdictional section of our brief we didn't do any extended briefing but certainly those organs are preserved in our jurisdictional statement that all the issues that they now raise as grounds for bias were discussed they were discussed with can with with meet i was counsel for imes and with counsel for the last i'm sitting there with all three arbitrators we discussed the fact that the day before that in person meeting there had been a mediation we were i had referred a friend i said you might want to call cote to get your mediation taken care of to get this dispute resolved and we'll discuss that very open because mediation had been the day before all of that was discussed but it in truth it didn't matter they never filed any objection based on bias anyway as a joint appendix page ten the panel confirms it was never an objective an objection fight on but and they keep saying that the district court didn't find that their failure to appear at the arbitration hearing house did didn't constitute waiver what the district court right page three ninety six is rather than make a record of their objections impartiality concerns defendants didn't appear join appendix five the court again says finally the court again no to defend has deliberately failed to attend the final arbitration hearing and  to raise any of these claims arguments or evidence to the panel itself is the significance of the fact that all three of the arbitrate is your client i don't think so your honor in the district court did do to it's a unanimous decision by all the arbitrator's finding that all of the claims and been released furthermore as the court can see in the award before the orbit is the beginning of the arbitration hearing before any hearing on the merits each of the arbitrators each set of two minutes will give you two minutes to above i think your honor first as far as the counterclaim creating jurisdiction federal jurisdiction a i believe that the way it's supposed to go is that counterclaim to the state court can't be could have although in that case they found they did not for some other reasons that clinton could give rise to federal jurisdiction if the federal court already has jurisdiction from some other bases the evidence in there in the record saying that the referral had been disclosed it vaguely mentions that there was some informal discussion some laughing and that they discussed that some arbitration was done the day before there is no record now the on the record that says that the that the referral of the art of the mediation was discussed with anyone that is that the affidavit in question is at j two eighty six