strategy and make allegations to hold all of the diverse defendants liable for the entire judgment and three hundred miles from where the plaintiffs lived and worked when the place has never retreated from any of these allegations or prevent proceedings congress simply an actor that one of the consequences of defendant and created a narrow statutory definition to three man this case the three circuit courts which have looked at the burden of proof all nine circuit court judges have concluded that the home state exception is just that an exception to jurisdiction and under traditional supreme court precedent the burden of proof should lie with the opponent of jurisdiction if mr serrano has that burden as we submit then he clearly loses on this point under any definition of what the primary defendant is even the district court's own definitions he offered no evidence so he knew at the time that there was at a minimum disagreement within the district court's within the ninth circuit as well as outside the ninth circuit that the burden of proof may fall upon him and throughout this proceeding and with the briefing it was always the defendant's position that he could and should submit whatever opposing evidence he has to to justify remaining so in this instance i think the appropriate remedy would not be another opportunity for mr serrano to submit more evidence if i understand your proposition but instead some time later in the case after the court has exercised jurisdiction he didn't prove if you're correct and he didn't prove it and he didn't get every man for that purpose but if there's a if if the court were to pass on that question as to how primary defended should be defined a consequence for this case might be yesterday the court should put the burden on mr serrano and removal was appropriate from that time for  i think the the propriety of defining primary defendant is necessary here because we now have a law of the cases where the district judge has issued a definition of primary defendant which defendant submit the findings of congress that are in the statute and congress is concerned about the burden on interstate commerce secondly which which we take exception with in our brief said is that the  propriety of looking at either senate report one o nine fourteen or senate report want to wait dash one twenty three is not only consistent with existing ninth circuit precedent but in this  good decision in footnote nine the court actually does look at the senate judiciary port from one hundred eighth congress for guidance ultimately didn't conclude that that was helpful but the notion that the district court should town ignore clear refused to look at these two senate judiciary reports not as controlling but just for guidance on developing a definition and instead should resort to dictionary definitions and that sort of thing without regard to the statutes congressional findings and the history we do have some it was inappropriate you know we get into this tug of war that you lead in the supreme court a lot about you know whether you look congress because that's what all of these tools are for can we discern what congress how congress wanted this term to be applied both looking at other terms in the statute looking at the available legislate history looking at the dictionary perhaps other laws in which this term has been applied so i define primary than i would define it accords with the principles that we find in both the congressional findings and in the senate judiciary fourth which is if the potential exposure is sufficiently significant to burden interstate commerce such that burden of proof i don't think so your honor because the normal way to do things i can't i can't speak to that because it hasn't been briefed by the opposition and they haven't really requested scale and if the other side purposefully does not submit any evidence and we have the pleading the pleading itself to benefit from i don't think there's any point in  that they have to climb over and in this instance we not only submit that we climb that things but that if you look at how the absence of evidence preponderate state removal was appropriate at the time identifies several parallel statutes and the best one is the bankruptcy statute thirteen thirty four which much like this one states that the district court shall have a regional jurisdiction over certain cases it ha discretionary component which says that the district court may decide in the interest of justice that it should not exercise jurisdiction and then it says the fifth court shall not exercise jurisdiction or shall abstain is actually what it says if another forum has jurisdiction and i think that's a parallel here because the use congress's use of the term declined jurisdiction implies that in fact jurisdiction exists on the basic element katha a court could acquire jurisdiction but it should decline to exercise that right of jurisdiction under these conditions because the state form has a sufficient interest and i think that's a very analogous to seen language that's in section thirteen thirty four as well as just the general colorado river and younger abstention doctrines albeit in those cases there's already a state proceeding that  of a red herring in the sense that the burden of proof is not that's dependent upon the the phraseology of this of of the statute it also has a lot to do with who's got the burden of the lease going forward plaintiffs don't have access to the corporate records and to the to the indeed of day to day control of labor relations that is the test that the fin that would use to say that we haven't met our burden so the idea nor do we have access by the way to this is a ship of the class of most defendants have that access because they either is the consumer case they dealt with the class or if it's an employment case  two forms in the can last known address the plaintiffs don't have the evidence so we shouldn't be put in the position of going forward once the evidence is once the evidence is produced and therefore putting  around the the structure of the statute i mean think about it it's a negative condition you can do this but you can't do that so is it a condition or is an exception and it doesn't it doesn't it's it doesn't don't have jurisdiction you never did it says must decline a it's not that you have discretion it's not that you have jurisdiction and you shall or you can not you don't have to exercise it if you don't have jurisdiction that's what shall the well because of the control of the evidence because of the control of the evidence because of the of the access to the the facts because it's a it's a defense burden to show that removal was proffered to begin with because we're not looking for a where we are coming up with any evidence that that is within our possession or control that would show if somehow we fit within a page or a square hole that we could escape from jurisdiction we're saying they didn't make it initially it's kind of like the well pleaded complaint we won in certain arista cases and all that you strip out the  t the negative implications and you find that in a well pleaded complaint this is what they should have said and this is what they needed to prove and therefore they didn't do it well do you agree if you look at u doesn't make sense that this is the the the the the burden becomes heavy i shall decline jurisdiction means you don't have a jurisdiction a eight may decline jurisdiction means you've got your stations discretionary if the rule is exceptions must be proven by the person who invokes them then then then then we point to the exception and then we get the sky every of them to say ok let's prove it if they have the burden of proving it then they come forward with the evidence i think when the day is done it's going to boil at the same it doesn't really matter what the we come forward with their positions where they squirm around and try not to admit it or they come forward with depositions or declarations and say here's what the facts are the bottom line is the facts are there is no day to day control or they would have mentioned it and if there's no day to day control then it doesn't matter who's got the burden of proof it there is no integrated relationship or at least there's not enough of one to make them the primary defendant reasons the first is an example in the legislative history that talks about pleasure should not be allowed to define the class so it isn't only in state class in other words i couldn't allege a class that said all present residents of california right ok so it's got to be what they call natural class whatever that means and the second reason so therefore you can't rely on plaintiff's definition of the class to shape the complaint and the second you've got to do what's called the natural class and the second reason is once plaintiff defines the class the plaintiff the fines the class typically we don't have access to the names and telephone numbers and addresses of the class we rely on discovery to get that and therefore we don't know this is the ship of the  of the class we know for example that this is a california employer and we know for for sure that everyone is everyone except maybe a few of the border counties with the california resident because otherwise the commute would be too long but then we shifted them to say ok you've given us dollar for dollar information on what you expect the damages to be they gave us all kinds of numbers on the removal petition on that they gave us you know exact full time equivalents and all those other period and they would have there they could put their best spin on it and their best foot forward and then we would save a lot of you know we save six months of of of i've been a very low opinion of sometimes a discovery i hate to say after thirty years of practice i don't usually get a straight answer but we would we they would give us what they had that looks best to them and then the judge could make up his mind based on that so i don't know if the burden of going forward in the burden of proof is destroyed and there's a record keeping requirement the initial burden is upon the employee to give a sum some estimate of how many hours he or she worked the burden then shifts to the other side to give problem well my problem with that is that there there there is a tendency to basically rough ride this into a into the burden of proof equals you win who wins and who loses because the burden of proof changes doesn't necessarily mean the district court's opinion is going to change i don't think there's anything that's going to come out in discovery that's going to be anything any more favorable to someone eighty connect they had their chance they had the going forward i mean if if they can't prove that they're not the i'm sorry if they can't prove with all their access that all they're all there with friendly with this is that they're not the primary defendant why should they assume that they're going to be if we just  burden that we have we have it going to have a different result in fact i would suspect that we're going to have the same result and the reason is is probably because the definition of primary defendant at least in my mind has something to do with when the dust  you may be one big defendant tart you know defendant for the place purposes but amongst yourselves defendants who bears the substantial risk of the substantial liability and that's the main the passive parent or the passive other subsidiary and the the the the primary defendant concept to me was designed to prevent nominal defendants like managers who are named stoli in employment discrimination case destroy diversity or they use the examples in their in the in the history of of of a bank on the border of between california fault is the manufacturer or is it the bank or is the parson who's doing the action and not some agent who's just named in there who happens to sell the car has nothing to do with it so your point mind so that decision and the legislative history the plaintiffs knows who they're suing they are in control of who they're suing they are in control all of who they are seeking all of this money from they are in control of the content of their complaint and in the th irty two page opposition brief that was submitted here you will not find one reference to the content of the complaint not one of the council here talks about agency liability and non players well under the labor codes that issue here only the employer can be held liable for the diverse defendants here one eighty connect in ironwood they can't be dismissed from this case because they have played it in such a sweeping and broad manner as to allege that those diverse defendants are the employers that they engage in the direct harm here that they set the policies that are at issue here so the question on remain why should my clients have to prove or have a discovery hearing on the merits to the allegations that they're making and the earth gives me the diverse defendants that they've targeted that's never been the standard  in a removal or or diversity case under any circumstances and it was inappropriate for the for the district court to dismiss those allegations in the complaint and to continually go back to my client and say