because the panel does have a question of our jurisdiction we would appreciate if you please argue the issue of jurisdiction along with the issues on appeal roger this case is about and primarily was before i got involved the question of whether or not the district court in toledo than the northern district of western division had subject matter jurisdiction to proceed after the arista claim which was the sole federal issue in th case whether or not they had supplemental jurisdiction to continue his and jurisdiction to determine at the time of removal of them rather than the time of dismissal if it is and it was was determined because and solely because of the original determine whether or not it had supplemental jurisdiction to then hear those state court claims and i'm confused i thought you just agreed with griffin that the point that we determine whether there's supplemental jurisdiction over the state claims is the time that was right but that's true initially but when things change and according to the musson case from this circuit court there is a presumption that once all federal claims are resolved that it should be returned to the state sorry judge so there are two wishes one is was a supplemental jurisdiction and the second is did the court abuse its discretion by continuing to exercise that after all if there was that was dismissed correct there are and there was no question that it needed to first question all right you have anything to say about the first question whether the court had supplemental jurisdiction over those state claims by virtue of the claim yes it did it  what's the reason for that because the arista claim was part was part of the original case and for that reason though at the time of removal we simply look at is there one valid federal claim is that the way we look at it that's the that's the way i look at now to go on and whether or not there's supplemental jurisdiction the district court had to determine that the operative facts in those state court claims and the one federal claim were strictly look at it as at the time removal you would think there would be a lot of law were at the time of removal people make motions saying well yes your honor you can keep this claim but you can't keep the other claims but i didn't see that when my research did you have any view on that i did not all of the law about whether or not the trial the district court should have retained the supplemental jurisdiction is after the fact for instance the mustn't case from this court the case which we also cited in the brief and if you do have to determine it originally should the district court have determined in the beginning that the supplemental jurisdiction wasn't there probably and was there an abuse of discretion i don't know there is abuse of discretion but i believe the district court was simply wrong in determining that the there was a nucleus of operative facts that allowed him to both cases i played in the complaint that was filed the verified complaint that was filed which of course is copious includes all sorts of complaints all sorts of facts there's one paragraph clean and that's against aa in northern as the administrator of the retirement plan the defendant the tree which is the only claim left here in which would have been in our opinion should have been sent back to the heart and had accomplished court after the r case that defendant guilty had nothing to do with the arista claim he wasn't in charge of administering the retirement plan he wasn't part of the administration of the university he was an associate dean but the claims against of the ways they retaliated was not giving him is there there is there are a lot of unfounded frankly emotional dissertation of facts the first three pages of that verified complaint basically are a laundry list of complaints he has with everybody at ohio northern and those are mingled up in there and the fact that they're all mangled up into two or three pages of facts does not mean that all the claims up come from the same nucleus of facts certainly the plaintiff who had a lot to say about the complaint being  filed when he asked mr alastor to sign the plane he wanted all of that in there a lot of good lord myself included would have said no we don't need all the facts but reciting them all together by a plaintiff and a lawyer who yields to the plaintiff's desire to vent all of his frustrations doesn't make them interurban into an operative set of facts that the nucleus of both of the evil the evil of the  allegedly do i read it right from the complaint that that happened as a result of things that ohio northern did before twenty t n yes for the were the i r s ruling yes and then what's the date of the alleged assault and battery on a twelve and a skeleton complaint was filed twenty thirteen simply to preserve the statute immediately after being filed hard county was dismissed and reserved by the saving statute of besides a jurisdictional issue which i believe of course is dispositive because despite some of the arguments of apple e you can't we've subject matter jurisdiction any more than you can waive  any more than you can waive a number of bedrock principles in litigation and this mustn't case this court indicates that the preference is for the for under supplemental jurisdiction the district court may decline may decline to exercise jurisdiction under subsection eight if the claim raises a novel or complex issue of state law well there is no novel or complex issue of the state law pretty simple assault and battery and of course in the assault battery case no facts no testimony nothing in the case was talked about with respect to  our supplemental brief i would lead with that because i thought frankly we were somewhat precluded by the statement of issues and parties that the pro se appellant had filed with this court so i went with that and of course the andersen versus shepherd case is that that's the law in the sixth circuit of course everyone else filed i note that the facts in this case as far as whether or not gerber should have been allowed to retain an attorney not have want to point to  him is very clear in andersen the facts there are better than they were for mr anderson whose problem mr anderson was that he of fired two attorneys both of whom wanted him to settle the case and the discussion by the district court  indicates that that judge had good reason to believe that mr anderson was basically stringing this out until somebody would say what he wanted to hear we don't have that in this case in this case just to hari and knowing as i do having had a couple cases before him he's very proactive on trying to settle cases and when this case couldn't get settled the records show there was never any offer of settlement to the plaintiff scott gerber when this case gets settled i believe judge zahari decided that the one else should have to do this all over again he's not willing to send it to another judge have somebody else do it but in the process  think far enough or confused interwove if you like the question of having a right to retain private counsel a civil case and of course you do not have the right to have a private counsel appointed for you in a civil case is judge barnes pointed out in his dissent of the anderson version sheppard case i notice the major objection in these dissent the judge bugg had was in his dissenting opinion i noticed the first five eighths of his dissent were basically about are we going to let people just keep firing attorneys and keep this go on and we shouldn't put our judgment in place of the district judge about whether or not he should get an attorney but even so in his dissent judge b pointed out that the issue here is the right to have private counsel to retain it not to have an appointed and i think the district court in this case looked over that it just said you don't have a right to  verver has retained an attorney to start the trial tom pigott tom pigott had a seizure on the second day of the trial that was in january of two thousand and sixteen and incidentally that probably had a closed hearing in november able to go on this case that's fine well not that it was connected but tom pickett had a seizure and wanted to go tinu representing scott girl that's got version isn't it was he said was that motion on the record and pickett says well i made an oral motion and they little about the continuing of pickett's continue and we're not relying particularly on that whether he did the point is he went he went had entered the trial and between january and march when the trial date had been set was hoping to recover enough to finish the thing but a week or so before he found i can't do it i can't do it healthwise they have the hearing in march scott gerber says i need a lawyer and i think anybody looking at the record knows that scott gerber needs a lawyer and needs one that tells him yes we do this we won't do that nonetheless the judge did is he pointed out judge griffen judge did say have them file a motion and i'll talk to him about a continuance well  it's on the record where gerber says judge she does not want to enter an appearance and then get stuck with a trial date which was set for thirty three days out from that hearing she can't possibly be ready then now that's exactly what well really the exchange between gerber and the judge i believe it's in the record is this i mean i i was looking for that myself there's a there's a conference on for on april sixth which i think is by telephone brec t and that was what i because i had i was thinking that i had just thought of this kind of an objection and i did not immediately see it in the record all or tof she takes her chances he would have said something now maybe i'm missing that well but i thought i had looked for that in the right at issue is in his decision about the hearing on april sixth and the judge has  the order of the judge had where he described all that and said that's in the record it's in the judge's decision in april which is have profiled the parents and i will talk to her about whether or not there's a continu the case was set for trial may third april sixth they have the hearing and judge to hardy's decision on that very question i was reading it right for we started here i know that the so that that question of that that question that have your attorney filed the parents and i'll talk to her about a continuance that's clearly on the record part of the court's decision i know that that part i understand it's the part about did they say but your honor the lawyer doesn't want to do it because then they would be ethically required to go through with the trial even if they weren't ready the plaintiff pro se does make that suggestion to the court in argument in that hearing  good afternoon good afternoon thank you your honor is my name is connor kinsey i'm the attorney for steve may please the court i would first like to address this supplemental jurisdiction issue and then discuss the  question raised by this court in requesting the supplemental briefs the common nucleus of operative fact that of course is the gibbs test which more or less applies to twenty eight u s c of thirteen hundred sixty seven subsection a which is the initial determination at the time of removal that needs to be made by the trial court is whether or not this entire laundry list of claims is come before this court sure enough of a common nucleus that it would be logical and the plaintiff would expect that all of these claims would be resolved is the same cause of action that was absolutely the case here josie harding made that determination at the time of removal correctly applied the gibbs test later you know in after  complaint which was the sole document in front of judge to harvey at the time of removal is a comprehensive laundry list of employment related claims it may be but count seven is the count four and count seven is all about the actions of ohio northern that predate the assault and battery and i think it's also extend significant there's not a in a risk retaliation claim he doesn't allege in count seven that he was denied a risk of benefits because he filed a claim about the assault and battery if you look at the paragraph before through ninety it has nothing to do with it it's not all it's own battery and therefore it's hard for me to see a common nucleus of facts that relate to count let me tell me tell me where it is correct or are there are a number of different instances the that we've  doesn't concern a risk so i mean a risk is the only thing that you get federal subject matter jurisdiction over right what was the retaliation for the retaliation as he states as stated in the complaint is that in retaliation for complaining about the alleged assault and battery of mr belcher you ohio northern university deprived him of certain employment identified ok just one greater about that and again this is what the judge the analysis the judge has to make at the at the time of removal we now have the benefit of hindsight looking at an assault and battery claim against an individual on one hand and a risk claim against the employer university on the other hand and throughout the period of time from removal until the actual trial and see that i don't see the connection other than the defense of the remains in the case works for the university and the defendant was a totally totally separate cl i believe there would be difficult if not impossible for a court to resolve the retaliation claims without resolving also the employment benefit claims and the assault and battery claims the they are really ation has nothing to do with the rest  has to do with other benefits other things them employment i guess i mean without the arista claim you wouldn't have been able to remove it simply based on the assault and the retaliation for complaining about the assault correct correct but there was the risk of complete component the retaliation claim says employee benefits employment let me press you a little bit on this question about do we only look at the time of remov whether you call it jurisdiction or abuse of discretion suppose per person makes a well pleaded complaint says i had protected activity they retaliated against me by denying  my benefits and other stuff happened ok on it's face it's removed there's no motion then it develops that the time sequence is such that it could have been in retaliation is the last such that you can't look at that of all you have to go ahead and say you have jurisdiction even though as a matter of no i absolute fact there can't be any connection i believe at that point we're probably getting that into subsection c of the statute which is the discretionary permissive grounds upon which the trial court could then at that point step back and say ok we've been through enough discovery we're far enough down this road that i'm still not seen the actual causal connection the common nucleus of operative facts between this entire universe of employment related claims at this point reason i'm a little slight odd is when you talk about common nucleus of operative facts a short and simple statement in a complaint usually doesn't doesn't have very many operative facts it on for sure that's the determination the judge hari had to make at the time of removal based upon the face of the complaint as drafted he's not in a position what would have been able to it after having the benefit of the whole lot of discovery and there was really no briefing on the topic  the time it was not something that the plaintiff ever objected to that it appeared obvious and evident to all the parties involved that this was a comprehensive area of employment related grievances against not only the university for retaliation and breach of his employment contract but also individual claims against not only mr belcher but also a number of other administrators at the university including mr voluntary three current or former dean of the university were sued individually as well as the director of human resources that this was a shotgun complaint all related to all connected with and all tied into his displeasure with his employment situation i'd like to move on then i guess to the to the continuance issue the court's already brought up that this case is substantially distinguishable from the andersen case i'm sure it's not been lost on on this court that mr gerber himself is an attorney he's a law professor he has practice law he's had clerkships he throughout the course of this case from the time was initially filed in two thousand and thirteen  well he's and he's now on his his fifth counsel at various points of time he has proceeded pro se at various points of time his head attorneys while proceeding pro se he has filed nearly a dozen different pleadings and motions including motions for summary judgment motions for reconsideration issued and served subpoenas in represent himself at trial and may she himself examine cross examined a dozen witnesses he introduced seventy three exhibits  what's the point of this there's no prejudice there there is no prejudice and i mean we have an old adage that attorney who represents himself has a fool for a client i mean there's a reason for that isn't there not there is but even though a represent himself as his judgments impaired i think if he's to do involving the case that could be the fact i think you'd have to analyze on a case by case basis whether or not an attorney's able to competently represent so i mean i i mean i think there's prejudiced good because i i think there's not it's not a good idea or even turny to do it himself so let's get past that and tell me why it's not an abuse of discretion that are the circumstances whether or not he's an attorney the trial court has discretion in granting or denied a motion for continuance it has to obviously look at the circumstances here that were marketed will be different than the andersen case where it was held in a trial court did appears its discretion nine in the motion a continuance to a pro se litigant here we had six weeks we had forty three days from the time mr pickett withdrew until the trial date was set the court repeatedly advised mr gerber that if you hire a new attorney i will certainly consider the issue of a continuance but i believe that you have ample time six we've said on the record that he tried to hire this attorney after the the but i guess the mistrial where is attorney had that mr gerber stated on the phone during one of these conferences that he had spoken with an attorney who was not willing to take the case when was i believe that would have been in april and it was either the april sixth call or the i believe march twenty f was that his only effort to get an attorney i mean i don't i'm not sure that's good faith if you only contact one attorney but is that what he said i contacted want to tourney that he give a name or he did not give a name i believe he identified the shoes a female attorney and he did not make any other reference to any other attempts to retain new counsel and i'm not sure that's a good faith effort if you only reaches out to want to turn and that's it i can't get anybody because i contacted want to terri and she did case she says she said she did release the statement was that she would do it if there was a continuance so the kind of the issue is you've got this kind of masking he does and he as i read the record and it's at fifty nine fifty three is the page id he does say that the lawyer doesn't want to have happen to them what happened to pigott who didn't get the continuance sort of doesn't say that she'd be i didn't read edition as saying that she'd be stuck with that maybe he implies that she'd have an ethical obligation i don't know i don't know whether you read the record in the eye any differently he did he did seem to have a allegedly known but unnamed lawyer but who wanted assurance before being named in entering what the result would be is that a fair reading mr gerber represented that he had an unnamed attorney who would not come into the case without the court granting a continuance before the appearance a this panel noted earlier mr pickett never never filed a motion for a continuance with the court but how did the what day was this by the way what do things which comes happened over the telephone the april sixth conference was by telephone and that's where he said he has this lawyer who doesn't want to get stuck basically yes your honor what was the court's response that if you have an attorney that's interesting taking this case have them contact continuance rather than just have a talk about it for your honor in that certainly is the procedurally appropriate way to go well that's what that's what you appealed the denial of a motion for a continuance for after mr gerber filed a motion for continuance sort of a bit to be fair as i understand it as i read the record at fifty nine fifty the judge makes these statements about if a new counsel enters an appearance and if the new counsel believes  continuance is needed the court will of course entertain that and it's a few pages on almost at the end i think or near the at a later time that he makes this statement about she doesn't want to have happen to them what happened to pigott and i did not see that the judge then made another round of discussion after that at fifty nine fifty three that that is for your honor yes yes again there was never a motion filed but by mr pickett requesting a continuance and forty three days unfortunately is often far more time the attorneys have to prepare for a case let alone a discreet assault and battery case with no witnesses no physical evidence whatsoever a true he said he said as to one gentleman put is his  left hand on the other gentleman's right shoulder and saying scott we need to talk that whether or not six weeks is an appropriate amount of time for counsel to prepare to try that case was it it six weeks it was april it was from april fourth to may fifth it was april sixth april sixth was the phone conference that we're referencing here but i believe it was march twenty first when mr pickett withdrew from the matter and in his motion to withdraw requested on behalf of his client at that time this continuance pigott withdrew and was granted on march twenty one yes that's the that's where you're getting the forty three day john yes then gerber makes a motion on march thirty which does mention the new lawyer then the four six is an oral discussion with respect to that march thirtieth motion right yes and that was a motion to continue that was i believe a comprehensive motion to continue also for the judge to recuse himself and i believe also to allow a specific witness to testify at trial but included in that was the motion to continue i believe so yes your honor yes thank you your honors i appreciate it very much your honor the entry i've been looking for is the april seventh order i judge the hari which is the docket number one thirty five this order was filed april seventh and it is to two and a half pages and sets up the trial schedule and if he does answer many of the questions particularly judge white asked about this about these issues there were three in the order the  of frankly abuse of discretion is in that motion to withdraw judge to hurry also talks about that the court has in the past and is now allowing plaintiff necessary time to obtain substitute his fourth counsel i noticed mr kinsey just mentioned his fifth counsel well they're both wrong this would have been his third the only one they had a parting of the ways the original one before trial the other one has a seizure so he is asking for his third attorney and the judge address and this goes to the judge who haris opinion and is consistent with a lot of his findings both on the seventh and later in august on the final decision he says if he says but it is well settled that there is no constitutional right to counsel civil cases and he doesn't cite anderson versus shepherd the law he cites fan phone versus city of detroit which is an unpublished opinion and which frankly isn't applicable because in fan following the plaintiff was complaining that he had ineffective assistance of counsel in a civil case and ought to be allowed to have a new trial for that reason well of course you get if there effect a sisk out to you get a new appointed criminal case but why judge zahari wouldn't go with the standard anderson versus shepherd isn't explained and of course he then goes on in the april seventh order to refuse to rec himself and he discusses the continuance issue and that's where the language most of the questions you're asking about this conversation in april and the hearing and his decision on april seventh are here in the motion for continuance is when the judge talks about his usual practice that he will the court will do what it has done in the past which is that allowed new counsel for plaintiff upon entering in a parents and up to bring her himself up to speed on the going to put herself on the hook unless she knows that can happen now could she have made it off the record phone call the judge say kenya but the judge refused to give any indication whether or not he would and having happened once before client involved the witnesses involved in the what's gone on before him not anything connect with you're a sick lame but what's good is a lot to weed through and thirty three days is not is not  time and the trial itself when they have it when they started it in january with tom pigott was in its second day and this is a bench trial within the epic journey to the second day for he has a seizure there are a lot of witnesses and there's a lot was really that clear of a standoff but now that we're looking at it seems to be the judge is saying enter an appearance make a motion all rule on and gerber at least on behalf of the unnamed attorney is saying no no you make a ruling first and then i'll enter a motion and appearance well and is there any law that says that the that your right to counsel lets you tell the judge to rule in advance certainly not and certainly not that clear what retain private counsel and in this case he did it and of course it wasn't framed that way it was framed to the judge and i've got an attorney not i'm looking for one and have did he only look for why so i got one she'll do it but she's got to know that she has time to prepare for it and was a lawyer scott gerber is a law professor a constitutional historian and a writer he appeared at these hearings and anybody reviewing how he handled himself in this case would concur with the old admonition that if he truly wanted to represent himself he has a fool for a client and an idiot for a lawyer but in this case he wanted to the tourney he didn't want to run if he didn't want to he knew enough about that